DEPARTMENTOFTHE NAV
Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAVY
ANNEX
WASHINGTON DC 20370.5100
JRE
Docket No:
26 February 2002
113-02
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 17 January 2002. 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.
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.
The Board found that on 21 November 1994, the Physical Evaluation Board (PEB) made
preliminary findings that you were unfit for duty because of an
Ll burst fracture, rated at
30%) and a left acetabular fracture and a coccygeal injury, rated together at
30%) for a
combined rating of 50%. Upon the approval of those findings, you were released from
active duty and transferred to the Temporary Disability Retired List. Thereafter, the
Department of Veterans Affairs rated the lumbar and coccygeal conditions together at
and the acetabular condition at 10%. Those ratings were increased to 50% and
30%)
respectively, on 24 December 1997. Subsequent VA ratings decisions, if any, were not
available to the Board. On 16 December 1999, the PEB found that the residuals of the
burst fracture remained unfitting, and ratable at
lo%, and that the other two conditions were
not separately unfitting and did not contribute to the unfitting condition. You were notified
of those findings by mail on 29 December 1999. As you did not respond to the notification
letter, you acceptance thereof was presumed, and you were discharged with entitlement to
disability severance pay.
20%,
Ll
The Board was not persuaded that you should have been retired by reason of physical
disability, vice discharged. In this regard, it noted that the impairment residual to your
injuries was minimal at the time of your discharge, and that the physician who conducted
your final periodic examination felt that you were fit for return to active duty. The Board
was unable to conclude that the lumbar condition was incorrectly rated at 10% disabling, or
that the acetabular or coccygeal conditions were unfitting. The fact that the VA rated all
three conditions is not probative of error or injustice, because the VA assigns ratings without
regard to the issue of fitness for military service. As you know, the Department of the Navy
rates only those conditions which render a service member unfit for duty.
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
ARMY | BCMR | CY2002 | 2002076951C070215
In April 2002, the applicant requested to be continued on active duty. The Board notes the applicant's and his counsel's contentions that he should have been rated at least 50 percent; however, there is no evidence to show that the USAPDA rated the applicant incorrectly or that the rating was based on Doctor A___'s alleged complaints (for which no evidence is provided) about the applicant's "disrespect." The Board notes counsel's contention that VASRD code 5292 provides for a 20 percent...
AF | PDBR | CY2010 | PD2010-00657
However, the Board noted that a 10% rating is warranted for painful motion of the lumbar spine IAW §4.59. In the matter of the L1 burst fracture, the Board recommends by majority decision (2:1 vote) a disability separation rating of 20% (coded 5285) IAW VASRD §4.71a. Exhibit C. Department of Veterans' Affairs Treatment Record.
AF | PDBR | CY2011 | PD2011-01045
The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Neurosurgical notes do not indicate whether the scoliosis noted on x-rays was developmental in nature, due to the L1 vertebral fracture, or due to muscle spasm. Based on this ROM examination, the VA granted an additional 10% rating for back pain in accordance with the VASRD general rating formula for...
AF | PDBR | CY2014 | PD 2014 01094
Loss of greater than 50% of vertebral height.§4.71a Rating10%10%The Board directs attention to its rating recommendationbased on the above evidence.For the purposes of this review, the Category II “low back pain” and the history of “L2 burst fracture” were subsumed under the unfitting “posterior fusion” condition, as “one disabling thoracolumbar spine disability,” as also noted in the VARD, dated 9 June 2009. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department...
AF | PDBR | CY2010 | PD2010-01121
After due deliberation, considering all of the evidence, the Board recommends a change in the PEB’s TDRL entry rating to 40% and no change in the permanent separation rating at TDRL exit of 10% coded as 5235 for the T12 Burst Fx. At the MEB TDRL evaluation 20 months after TDRL entry and 9 months prior to TDRL exit, the examiner noted that the CI had tenderness over the right thigh joints and flexing the right hip greater than 90 degrees caused her pain in both buttocks. In the matter of...
AF | PDBR | CY2012 | PD-2012-01947
At the April 2006 MEB exam, forward flexion was 50 degrees. After a thorough review of the evidence, the Board determined that a disability rating of 20% was appropriate. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.The Board did not surmise from the record or PEB ruling in this case...
AF | PDBR | CY2009 | PD2009-00528
The CI’s bilateral hip degenerative joint disease resulted in limited range of motion of each hip joint at a level that did not meet the minimum compensable level. The Board also considered the condition of Asthma/Obstructive Pulmonary Disease and Bilateral Hearing Loss and unanimously determined that these conditions were not unfitting at the time of separation from service and therefore no disability rating can be applied to either condition. Exhibit C. Department of Veterans' Affairs...
AF | PDBR | CY2012 | PD2012 01571
No other conditions were submitted by the MEB.The PEB adjudicated “abdominal pain, status post gunshot wound”as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).The CI requested reconsideration. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the...
AF | PDBR | CY2013 | PD2013 00662
The hip was not separately examined. Pre-SepFlexion (90 Normal) 60 90 (95) Combined (240)--- 240 Comment §4.71a Rating 20% 0%The Board first considered if the back pain was a separately unfitting condition. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.The Board did not surmise from...
AF | PDBR | CY2013 | PD-2013-02642
No other conditions were submitted by the MEB.TheInformal PEB adjudicated “pelvic ring fracture” and “left femur fracture,” conditions, rated at 10% and 10% respectively. It is noted, however, that the VA subsumed the acetabular fracture with the hip rating. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record