DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

JRE
Docket No: 
30 October 2001

835501

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 27 September 2001. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion furnished by the Director, Naval Council of Personnel
Boards, dated 21 June 2001, a copy of which is attached, and your rebuttal thereto.

After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice. In this connection, the Board substantially concurred with the comments contained
in the advisory opinion. The Board reviewed the original rating documents filed with your
disability evaluation proceedings, it was clear to the Board that the initial rating assigned by
the Physical Evaluation Board, prior to your transfer to the Temporary Disability Retired
List, was under VA code 8025-7203, rather than 8025-7003, and that a typographical error
was made when the hand written rating was transcribed. A hyphenated rating was assigned
because the your condition was rated based on its residual effects, of which esophageal
dysfunction was the most prominent. The Board rejected your unsubstantiated contentions to
the effect that you did not receive the effective assistance of counsel during your disability
evaluation process.

The fact that the VA rated several conditions not rated by the Navy was not considered
probative of the existence of error or injustice in your Navy record.
In this regard, the
E3oard noted that the VA assigns disability ratings without regard to the issue of fitness for
military duty, whereas the military departments rate only those conditions which render a

service member unfit for duty. The VA assigned you ratings for migraine headaches,
hypertension, and osteoarthritis of multiple joints as separate entities, and not as conditions
caused by or otherwise related to your myasthenia gravis (MG). As those conditions did not
render you unfit for duty, they were not ratable by the Department of the Navy.

had a

It is clear that many of the conditions rated by the VA, which you contend are related to the
MG, began years before you were diagnosed as suffering from MG. The Board noted that
when you underwent a pre-enlistment physical examination on 26 September 1980, you 
body mass index of about 31, which falls in the lower end of the obese range. Your blood
pressure was recorded as 
146/80 mm Hg, which is borderline high, and that you were
required to undergo serial blood pressure readings prior to being found qualified for
enlistment. On 4 March 1981, while a student Officer Candidate School, you were classified
as obese, and instructed to limit your daily caloric intake. During the rest of your active
duty career, you had elevated or borderline high blood pressure readings from time to time,
and you remained overweight, with the possible exception of brief periods when you lost
weight in order to avoid administrative separation processing for failure to comply with body
weight standards. Following your release from active duty and transfer to the TDRL, you
were no longer required to maintain your weight within reasonable levels, and it increased
substantially. The Board rejected your contention that your use of corticosteroid
medications caused you to gain weight, which in-turn aggravated your arthritis. In this
regard, it noted that steroid associated weight gain is generally attributable to increased
appetite, which is controllable. You were unsuccessful in controlling your weight, and
ultimately elected to undergo a gastric by-pass procedure in order to limit your caloric intake
Although your excessive weight contributed to your fatigue, as well as the pain in your
weight bearing joints, it cannot be attributed to your use of medication.

You disclosed the injury and treatment

With regard to the osteoarthritis, the Board noted you had sustained a lower back injury prior
to enlisting in the Navy, which was treated with bed rest.
It is notable that you concealed
that history when you completed a Standard Form 93, Report of Medical History, on 26
September 1980, in connection with your enlistment.
when seeking treatment for a back injury you suffered in an automobile accident on 9
August 1985. Thereafter, you complained of spinal pain which extended from your neck to
your lower back, and radiated into your right upper leg, thigh and knee, and caused
numbness in your right foot. Degenerative changes were noted several years later in
multiple joints, and your condition has continued to worsen and spread to additional joints
since that time. The Board concluded that had the PEB had found your arthritis to be
unfitting as of 1 October 1994, it is unlikely that you would have received a substantial
rating for that condition, because substantial deductions would have been taken from the
rating for non-compliance with medical advice to control your weight, which exacerbated
your condition.

The Board agreed with your contention that rating guidance for VA code 
when a rating in excess of the minimum is assigned, it is exceptionally important that the
diagnostic codes utilized as bases of evaluation be cited in addition to code 8025 however, it
disagrees with your conclusion that VA rating officials followed that guidance.
VA rating
officials did not specify any additional codes, and they assigned you a 50% rating for MG

8025’provides that

based on the nebulous reason that they 
extent of disability caused by the MG.
provide a clear basis for their choice of that rating.

. felt that a 50% evaluation properly ” reflected the
. “. 
Allied rating documents you submitted do not

The Board was not persuaded that your MG condition was unstable when you were
It noted that your condition was largely quiescent at that time, and that
permanently retired.
there has been no significant increase in the severity of the MG since then. The fact that you
still require medical therapy, and faced the possibility that your condition might worsen at
some time in the future, do not demonstrate that the MG was unstable or that you should
have been retained on the TDRL for the maximum permissible period. There is no basis for
concluding that you would have received an increased disability rating had your retirement
been deferred to 1999.

“somewhat slurred ” speech, and eyelid droop which

The Board carefully considered the statements of Drs. Freeman and Leshner, and concluded
that they do not support the conclusion that you were severely impaired by your MG
condition. Dr. Freeman classified your MG as  “severe”, but noted that was well controlled
by medical therapy. His opinion appears to have been based in large part on the potential
consequences of your disease, rather than objectively demonstrated and verified symptoms.
Although the possibility that you might experience life threatening crises in the future is one
of the primary reasons you were found permanently unfit for duty, the mere possibility of a
future crisis is of little or no rating significance. Dr. Freeman described what can be
characterized as trivial to mild symptoms of MG, such as “some difficulty swallowing ” on
days when you were off prednisone,
had been noted with repetitive eye movement. His claims that the MG significantly affected
you arms and legs was vitiated by his observation that such effects were  “often not easily
discernible in a point-in-time examination ”. He addressed the issue of fatigue, but did not
discuss the contribution of your obesity to that fatigue. Dr. Leshner felt that you deserved
more than the minimum rating for MG because you remained on high doses of medication,
but admitted that he did not fully understand the military disability evaluation system. He
also noted that when he examined you in February 1997, your MG was well controlled, but
that you had  “residual fatiguable weakness ” at that time. The report of the February 1997
examination by Dr. Leshner indicates that you were close to clinical remission at that time,
and that he was loath to make any changes in a treatment regimen which had been  “so
successful ” in controlling your disease. He noted that should  “minor exacerbations ensue ”,
he would consider minor adjustments in your medication. He demonstrated his ignorance of
the rating principles applicable to the military disability evaluation system when he indicated
that he would support a continuation of a 50% rating for MG until  “he enjoys  ‘true
myasthenic remission ’, i.e., elimination of virtually all symptoms while on no immuno-
suppressive medications. 

”

The statements from your co-workers indicate that you are impaired in your work
environment by a variety of symptoms; however, it appears that most, if not all, of your
symptoms can be attributed to the effects of your excessive body weight and osteoarthritis,
which were not unfitting, and do not appear to be causally related to the MG.

In view of the foregoing, your application has been denied. The names and votes of the

members of the panel will be furnished upon request.

It is regretted 
that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new
and material evidence or other matter not previously considered by the Board. In this
regard, it is important to keep in mind that a presumption of regularity attaches to all official
records. Consequently, when applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of probable material error or
injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

DEPARTMENT OF THE NAVY
NAVALCOUNCIL OF PERSONNEL BOARDS

720 

KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

5240
Ser: 01-21
21 Jun 01

Director,
Executive Director,
Naval Records

Naval Council of Personnel Boards

Board for Correction of

REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE
OF FORMER

-.-

(a) Your 
(b) SECNAVINST 

1850.4D

ltr  JRE:jdh Docket No: 8355-00 of 

15 Mar 01

From:
To:

Subj:

Ref:

This letter responds to reference (a) which requested

1.
comments and a recommendation regarding Petitioner's
The Petitioner
request for correction of his records.
contends his condition warranted a disability rating of 80%
vice the 30%

disability rating he received.

The Petitioner's case history, contained in reference
2.
(a), was thoroughly reviewed in accordance with reference
(b)  and is returned.

The following comments are provided:

a.

The Petitioner was discharged from the U.S. Navy

and placed on the TDRL on 1 October 1994 with a 50%
disability rating under V.A.
Gravis generalized and severe Bulbar weakness and Dysphagia
secondary to the Myasthenia Gravis.

Code 8025-7003 for Myasthenia

b.

The Petitioner in his BCNR application raises a
number of issues regarding the representation he received
from his assigned PEB Counsel.
the Naval Legal Service Office North Central.
regarding representation should be addressed by that
command.
The only issue of substance presented by the
Petitioner that is addressable by this office is whether
the specific data documented in his record supports the 2
September 1997 PEB determination.

Issues

His Counsel was provided by

C .

The PEB originally placed the member on the TDRL
based on VASRD Code 8025-7003 and granted him a disability
rating of 50%.
convened to hear the Petitioner's case.
determined that the Record Review Panel in April of 1994,

a Hearing Panel was

On 29 July 1997,

The Hearing Panel

Subj:

REQUEST
OF FORMER

FOR COMMENTS AND RECOMMENDATIONS IN THE CASE

Code 8025-7003,

which granted the Petitioner a disability rating of 50%
had made an error since a
under V.A.
disability rating of 50%
In addition,
Adhesions and restrictions that were not present in the
Petitioner's case.

V.A. Code 8025-7003 is for Pericardial

is not available under that code.

__-

d.

The Record Review Panel's use of 8025-7003 was

The correct

The Hearing Panel made the proper

likely the result of a transcription error.
V.A. Code for the Petitioner's condition is 8025-7203 for
Esophageal Dysfunction.
decision in correcting and reducing the Petitioner's
disability rating to 30%.
identify ratable residuals of sufficient magnitude as to
combine in a rating greater than the 30% awarded.
record indicates the Petitioner was able to function
reasonably well despite the frustrations normally
associated with Myasthenia Gravis.

The Petitioner's record does not

The

In summary,

the Hearing Panel made the proper

3.
determination in reducing the Petitioner's disability
The Petitioner's record does not contain
rating.
sufficient evidence to support any increase in his
disability rating.
for Petitioner's record.

At this time,

’
no change is recommended

2