DEPARTMENT OF THE NAVY
BOARD FORCORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

Docket No: 799-02
17 December 2002

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.

Board for Correction of Naval Records, sitting in executive

A three-member panel of the 
session, considered your application on 12 December 2002.
injustice were reviewed in accordance with administrative regulations and procedures
Board
applicable to the proceedings of this Board. Documentary material considered by the 
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 
dated 22 October 2002, a copy of which is attached, and your response thereto.

the Director, Naval Council of Personnel Boards

Your allegations of error and

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. In addition, it concurred with the rationale of the hearing panel of the
Physical Evaluation Board which considered your case on 15 September 1998. A copy of
that rationale is also attached.
disability rating under code 5295, or that you suffered 
In addition, it noted that ratings assigned by the military departments, as well as the
Department of Veterans Affairs, are based on the average impairment earning capacity
associated with a rated condition, rather than on the actual or anticipated loss of a earning
capacity of a specific service member or veteran.

It was not persuaded that you were entitled to an increased

from a ratable neurological condition.

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.
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.

In this regard, it is

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

DEPARTMENT OF THE NAVY

NAVAL COUNCIL OF PERSONNEL BOARDS

WASHINGTON NAVY YARD
KENNON STREET SE RM 309

720 
WASHINGTON. DC 203746023

5220
Ser:
22 

02-17

Ott 02

From:
To:

Subj:

Ref:

Director,
Executive Director,
Records

Naval Council of Personnel Boards

Board for Corrections of Naval

REQUEST FOR 
OF FORMER

C0MMENT.S  AND RECOMMENDATIONS IN THE CASE

(a) Your ltr JRE:jdh Docket No: 00799-02 of 15
(b) SECNAVINST 

1850.4E

Aug 02

Navy with a disability rated at 10% under VASRD

Per reference (a) the Petitioner was honorably discharged

1.
from the U.S.
Code 5295 and states he should have been rated at a higher
percentage for his condition.
retirement be changed to the Permanent Disability Retired List
(PDRL) at a disability rated at 30%.

He is requesting that his

The Petitioner's case history,

2.
was thoroughly reviewed in accordance with reference
returned with the following comments:

contained in reference (a),

 

(b)  and is

a.
laying
back sprain in July 1995.

injured his lower back in May of 1992 while
ship's Dental Office.

He also suffered a low

b.

In June 1994 he underwent a surgical decompression and

in July of 1996 underwent fusion/laminectomy as the low back
pain had escalated and he started to experience discomfort in
his right hip.

C .

A medical board was prepared in January 1998 and

PEB's  Record Review Panel

In June,

1998, the 

forwarded to the Physical Evaluation Board (PEB) for
consideration.
(RRP) found-UNFIT for continued military service due
to a disability rated at 10%.
finding and demanded a formal hearing.
Formal Hearing Panel,
at zero percent.
submitted by
UNFIT at 40%
of Personnel Boards reinstated the RRP finding of 10%.

In response to a Petition for Relief (PFR),

in October 1998 requesting a finding of
under VASRD Code 5295, the Director, Naval Council

In September 1998, the
San Diego also found him UNFIT but ratable

1  disagreed with that

d.

Despite his injures and subsequent surgeries, CDR Shook

maintained a high level of performance as a dentist, as
documented in fitness reports and selection for promotion.
FITREP  for the period 1 November 1997 
performed over   700 procedures on U.S. Coast Guard personnel. He
signed this report without rebuttal.
month after the RRP findings of UNFIT,
Commander.
24 July 1998,
was still credentialed as a dentist.
1 July 1998 and signed his fitness report on 24 July 1998.

On 15 September 1998, -testified that, as of

he still thought he was  

fit  for duty and that he
He signed his promotion on

In July 1998, almost one
he signed his promotion to

- 24 July 1998, states he

His

e.

During August 1999,

was hired by the

University of Tennessee College of Dentistry,
Professor.
not be in one position all the time. Also, the act of sitting
and having lateral movement,
which is associated with his
profession,

He stated that teaching allowed him the freedom to

was a major aggravation to his pain.

as an Assistant

f.

On 18 September   2000, at the Campbell Clinic, he was

diagnosed as having normal coordination.
significantly improved since receiving treatment specifically
geared toward his back problems.

His low back pain had

3.
In summary,
academician with
employment is consistent with his training and experience and
could, even,
have been compatible with a PEB finding of FIT.
The latter was actually discussed at the time his PFR was under
evaluation.

as been able to function as a dental
clinical responsibilities.
Such

both the PEB and VA determined

In any event,

disability was best characterized at 10% under VASR

Despite- obvious frustration, he has manage

5295.
to adapt functionally at a level compatible with both his PEB
and VA findings.
to warrant an increase in his disability rating.

there is insufficient medical evidence

Hence,

d

2

SAN DIEGO HEARING PANEL RATIONALE.

A medical board met at Naval Hospital, Pensacola, Florida
on 28 January 1998 with a diagnosis of:
1.

Lumbar Decompression and

Low Back Pain Status Post  
Fusion (72420)

The Record Review Panel found the member unfit for duty under VA Code
5295, rated his condition at 10% disability and separation
pay.
This member appeared.before the Panel on 15 September 1998
be found unfit for duty under VA Codes 5299-5295, rated at
and placed on the PDRL.

with severance

requesting to
40% disability

Accepted documentary evidence consisted of:

PEB Case File
Additional Medical Information
Service Record Entries/Fitness Reports
PRT Record

Physical
D dtd 09 Jul 98

Exam Follow-up by

3 Jui 98
on.Findings from Examination

- Ltr from Dr.
- Radiology Report:
- Nerve Conduction Study  

Peterson dtd 20 Aug 98

Bone Scan dtd 18 Aug  
& EMG Evaluation b

9

-
-
-
-
-

-
-

Exh?_bit  A 
Exhibit B  
Exhibit C  
Exhibit D  
Exhibit E  

Exhibit F  
Exhibit G  

-Exhibit H 
Exhibit 1  
Exhibit J  

Exhibit K  

-

Exhibit 
-
L 
Exhibit M  
-
Exhibit N th
-
Exhibit S  

Biofeedback Therapist

Derbes dtd 25 Aug 98
Commanding Officer, Naval
td 09 Sep 98

Dental Ce

dtd 

5/13/98

onmedical  Evidence

Agreement for Dental Additional Special Pay

The  member's medical board of 28 January 1998 lists a diagnosis of low
back pain status 'post 
which was done in July 1996.
The member has since then missed four
PRT's,
fifteen to twenty minutes and has experienced no subjective improvement
in his condition.

The member complains of pain after sitting or standing for

lumbar,decompression  and fusion at the 

L4-5  level,

Enclosure (1)

1

It reports'

tr-tnsverse  processes.

X-rays
The

+2 equal bilaterally.

Sensory examination

d normal motor exam and 

The motor examination was

50% and decreased extension   by  60% to 65%.

is very good to the extent the member can flex

flexion,  however,
5/5  and reflexes were 

+2 symmetrical reflexes without muscle
The only positive finding was decreased
The impression was low back pain.

TQe  physical examination in the medical board notes no spasm.
decreased lateral bending by  
Forward 
forward to six inches short of the floor.
reported 
was intact and there was no muscle wasting or asymmetry noted.
revealed instrumentation in the lumbar spine area with good consolidation
of the fusion especially between the right 
impression was low back pain.
A follow-up examination by the member's
7/8/98  reported essentially the same findings.
civilian neurologist of 
There was 
wasting or asymmetry reported.
sensation on the left great toe.
I
The member asserts he is unfit and complains of pain in his back and down
his left leg.
He testified that he cannot sit for more than fifteen or
twenty minutes, however,
the member sat comfortably throughout a sixty-
five minute hearing.
The member submitted multiple exhibits to support
&.s  contention that he is unfit.
deporting no abnormal activity in the lumbosacral spine.
Exhibit C is a
fitness report covering the period 1 November 1997 to 24 July 1998 that
rates the member at or above standards in all categories.
Box 37,
concerning mission accomplishment and initiative, rafes the member at 5,
greatly exceeding standards.
report 
on U. S.
Coast Guard personnel.
in his testimony,
ts minimize
his accomplishments as reflected in the fitness report.
He stated that
his commanding officer was overly.generous.
However,
The member
:,:_eo:
his 
.~~y..;gg~~~~,without  any rebuttal.
thoug_ht  
testlpled'W@t;  a
1998',  he 
was 
he.. 
f&,5
.stil.l  
* ‘. ‘I 
i- 
I,l,i;L.q&~.,.
q 
..“. 
. 
,. 
:) 
,.,-, 
c.41’ 
r
>
The  
a l so
t
~ .!! ~ ““; ~~ : y~
 
dkn ti
as 
c r eden
g f x&
a 
ti a ll ed
 
!ii
:i,:;;*,+. 
;‘,.*,‘W>,P 
‘.,A 
%:.* G. 
, e 
.. ~ 
,i
‘
: 
I
&& .&+ ‘&+$+$+q$_z6$*. 
,~es+#*
I. 
,F._ 
24,August  1998 

OF the fitness
tended 
the member signed

.it notes that the member performed over 700 procedures 

Exhibit B is a CT scan of  

on 
,_3pfz.,?!4  July 
s tifl g& ; ‘

In the narrative section  

EMG  report of 

gastroc  muscle testing is 

+l bilaterally in the ankles.

The member's deep tendon reflexes are symmetrical and 

EMG  except for slight slowing in the left common Perineal nerve.
It should be noted that the motor
5/S  throughout except for the tibialus interior muscle which was

.that  mentions that the
Exhibit J is an 
member's left calf is slightly smaller than his right, but this reveals
no clinical significance because the 
5/5
bilaterally.
everywhere except 
normal 
This was interpreted 
L4-5,  Sl distribution on the left.
exam was 
.5 on the right and 4.5 on the left.
evidence submitted of any objective findings of  
Exhibit M is a letter form 
the commanding officer can
his current duties as a dental officer".
that the commanding officer did not write a special fitness 

neurologic  residuals.
the  member's new commanding officer that says
"no longer count on [the member] to perform
the member testified
r'eport

as an EMG consistent with chronic 

Apart from that, there was no

The impression was a

However,

&&.&~ss  
m e * e r

 

?$. 

fQ
i. d_*..,.,,s*

+2

The member,

7/23/98

denervatkon  in the

Enclosure (1)

1 /

.. 

/

\.

* 

‘

I

The member

However,

it should be noted that the member

pe 

stqtes  he still considered himself fit for duty, despite

1420.1A,  promotion'should be delayed if "there is cause to

member's agreement to remain on active duty
13 May 1998 he did consider himself to be fit for

concerning his inabilities and the member also testified that he is
currently still credentialled as a dental officer.
Exhibit S is a copy of the 
for dental additional special pay dated 13 May 1998.
testified that as of 
duty.
Per SECNAVINST 
believe that the officer is mentally, physically, morally, or
professionally unqualified".
was promoted to Commander on 1 July 1998 and signed his new commission.
At that time,
being counseled on his Record Review Panel findings on 24 June 1998.
The member's testimony was that he thought he was unfit now, but fit
throughout the spring of 1998.
On close questioning,   the member was
rather vague about when he decided that he was unfit.
However, the
member was rat&d unfit by the Record Review Panel as of 9 June 1998 and
the member sighed his promotion on 1 July 1998.
signed his 
In sum,
objective 
documentary record,
duty, the Hearing Panel would unequivocally find him fit for duty.
However,
Therefore,
after careful consideration of all relevant medical evidence, viewed in a
.light  most favorable to the member,
the Hearing Panel finds the member
unfit for continued naval 
rated under VA,Code 5295 at 0% disability.

this member repeatedly asserts that he is unfit.

the member has dramatic subjective complaints with only minimal

neurologic  findings after his back surgeries.

Based on the

if this member were requesting to be found fit for

seTvice  and recommends that he be separated and

fitpess  report on 24 July 1998.

Furthermore, the member

Enclosure (1)