DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAVY
ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No:
15 January 2002
321501
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 9 January 2002.
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 comments furnished by your counsel.
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 rationale of the
hearing panel of the Physical Evaluation Board which considered your case on 11 August
1999, a copy of which is attached. Accordingly, 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
RATIONALE:
THE MEMBER IS A 28 YEAR OLD CPL, USMC(RET) WITH ABOUT 6 YEARS OF
SERVICE AT THE TIME HE WAS PLACED ON THE TDRL ON 1 DECEMBER 1994
WITH A DISABILITY RATING OF 40% UNDER V.A. CODE 5293 FOR THE
DIAGNOSES:
(1) LUMBAR PAIN, CHRONIC;
-
CATEGORY II
(2) STATUS POST
(3) CHRONIC RIGHT
DISC BULGE.
L5-S 1 DISCECTOMY; AND
L5 RADICULOPATHY AND PAIN FROM
L4-5 DIFFUSE
FOR DUTY BE C AUSE
THE MEMBER UNDERWENT TDRL EVALUATION ON 19 AUGUST 1996 AT
LEJEIJNE NAVAL HOSPITAL. THE PEB RECORD REVIEW PANEL
CAMP
CONSIDERED THE CASE ON 18 NOVEMBER 1996 AND FOUND THE MEMBER
UNFIT
UNDER V.A. CODE 5293. THE MEMBER APPEALED THIS FINDING TO A
FORMAL HEARING AT THE PEB HEARING PANEL BETHESDA ON 2 APRIL
1997, AT WHICH TIME THE MEMBER WAS RETAINED ON THE TDRL AT HIS
PREVIOUS RATING.
0~ PHY S IC AL D I SAB ILITY RAT ABLE AT 20 %
THE MEMBER UNDERWENT TDRL EVALUATION AGAIN ON 29 JULY 1998 AT
CAMP LEJEUNE NAVAL HOSPITAL. THE INFORMAL PEB CONSIDERED THE
UNFIT FOR
CASE ON 24 MARCH 1999 AND FOUND THE MEMBER REMAINS
DUTY BECAUSE OF PHYSICAL DISABILITY BASED ON THE ABOVE
DIAGNOSES AND RATABLE AT 10%
DISAGREED WITH THIS FINDING AND DEMANDED A FORMAL HEARING.
UNDER V.A. CODE 5295. THE MEMBER
.
A FORMAL HEARING WAS CONDUCTED ON 11 AUGUST, 1999 AT BETHESDA,
MARYLAND WITH COLONEL D. L.
PRESIDING OFFICER, COLONEL M. D. HALL, USMC, AND CAPTAIN L. E.
MCCRACKEN, MC, USN, AS PANEL MEMBERS. THE MEMBER WAS
REPRESENTED BY
STOVER-KENDRICK, USMCR, AS
PERDUE, JAGC, USNR.
LIEUTENANT’W. G.
THE MEMBER APPEARED AT THE HEARING REQUESTING TO BE FOUND
UNFIT FOR DUTY WITH A DISABILITY RATING OF 40% UNDER V.A. CODE
5295 AND PLACEMENT ON THE PDRL. TO SUPPORT HIS REQUEST THE
MEMBER PRESENTED TESTIMONY AND COPIES OF HIS RECENT
TREATMENT RECORDS FROM PORTSMOUTH NAVAL MEDICAL CENTER.
THE MEMBER ALSO MADE HIS HEALTH RECORD, X-RAYS, AND MRI ’S
AVAILABLE FOR REVIEW.
AFTER CAREFUL REVIEW OF ALL THE AVAILABLE EVIDENCE AND BASED
ON UNANIMOUS OPINION, THE FORMAL PEB FINDS THE MEMBER REMAINS
UNFIT FOR FULL DUTY IN THE U.S. MARINE CORPS BECAUSE OF PHYSICAL
DISABILITY. THE RECORD DOCUMENTS THAT THE MEMBER HAS
CONTINUED TO HAVE CHRONIC BACK AND LEG PAIN SINCE UNDERGOING
AN
ACTIVITIES AND WOULD INTERFERE WITH THE ADEQUATE PERFORMANCE
OF REQUIRED MILITARY DUTIES.
APRIL 1993 THAT LIMITS THE MEMBER
LS-Sl DISCECTOMY IN
’S
5/5, INTACT AND
THE TDRL EVALUATION INDICATES THE MEMBER CONTINUES TO HAVE
90% LOW BACK PAIN AND 10% RIGHT LOWER EXTREMITY PAIN. EXAM
WAS REPORTED TO SHOW PAIN TO PALPATION IN THE MIDLINE OF THE
LUMBOSACRAL SPINE, NEGATIVE STRAIGHT LEG RAISE AND
CONTRALATERAL STRAIGHT LEG RAISE, MOTOR
SYMMETRIC TENDON REFLEXES, BUT DECREASED LIGHT TOUCH TO THE
ANTERIOR LATERAL CALF AND MEDIAL ASPECT OF THE RIGHT FOOT.
HOWEVER, THE EXAM REPORTED ON THE EVALUATION OF 15 JANUARY
1998 AT THE JOHNSTON PAIN MANAGEMENT CLINIC REPORTED NO
SENSORY DEFICIT AND SUGGESTED PSYCHOLOGIC FACTORS AFFECTING
PHYSICAL CONDITION WITH A POSSIBILITY OF SECONDARY GAIN
FACTORS. THE LAST MRI
BULGES IN THE LUMBAR SPINE BUT NO EVIDENCE OF RECURRENT
HERNIATED DISC OR IMPINGEMENT ON NERVE ROOTS. HOWEVER, THERE
L5-S 1 LEVEL
WAS A SMALL AMOUNT OF DEGENERATIVE DISEASE AT THE
FACET JOINTS BILATERALLY WITHOUT COMPROMISE OF THE NEURAL
EXIT
ROOTS AT THE
THERE IS NO SIGNIFICANT NEUROLOGIC DEFICIT ON EXAM TO
CORRELATE TO THIS. BASED ON THE ABOVE, THE DISABILITY IS MOST
APPROPRIATELY RATED AT 10% UNDER V.A. CODE 5295 IN ACCORDANCE
WITH THE CRITERIA SPECIFIED IN ENCLOSURE (9) TO SECNAV
INSTRUCTION
FORAMEN. ALTHOUGH IT REPORTED CLUMPING OF THE NERVE
IN MARCH 1997 REPORTED ONLY MINIMAL DISC
L5 LEVELS CONSISTENT WITH ARACHNOIDITIS,
L4,4-5, AND
1850.4D.
Physicial Evaluation Board, using the same Medical findings, and the
Supposedly the Naval
diagnostic code of 5295 came up with an inadequate rating of 10% that does not appropriately
reflect the evidence and therefore we maintain is an impropriety. As the regulations have not
been properly applied in connection with the medical evidence. Allowing for an inequitable
decision on the
40% Permanent Medical Retirement
of
We ask for the Board ’s careful and sympathetic consideration
in rendering a fair and impartial decision.
submitted by the applicant.
all the evidence
FSM’s behalf that we request along
with- be corrected to show a
(PDRL).
‘I’hese issues do not supersede any issues previously
of
record used
KLG: klg
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CI CONTENTION : The CI states: ‘VA rated disability at 40% Service connection on May 28, 1997 and considered me unemployable on 4-22-04 for the back condition military discharged me with at 10%. Follow-up for back pain. The frequency and severity of the CI’s back pain and radicular pain increased significantly during his time on TDRL and this was consistent with the increasing severity of degenerative disc disease and herniated discs with impingement on the right S1 nerve root documented...
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