DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 4558-02
25 February 2003
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 13
February 2003. 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 you were evaluated by a medical board on 28
September 2000, and given a diagnosis of multilevel degenerative disc
disease, lumbar spine, without frank herniation. The medical board
report indicates that you had full range of motion in the lumbar
spine, without palpable spasm and not trigger points. The neurological
examination was normal, with no evidence of motor or dermatomal
sensory deficit. Deep tendon reflexes were normal, and the straight
leg test was positive at 45 degrees. On 6 March 2001, the Physical
Evaluation Board (PEB) made preliminary findings that you were unfit
for duty, and that you condition was ratable at 10%, as lumbosacral
strain. You accepted those findings on 11 April 2001, contingent upon
your being retained on active duty until 13 July 2001. You were
discharged in accordance with your request on 13 July 2001, with
entitlement o disability severance pay. The Department of Veterans
Affairs rated your back condition at 40% for severe intervertebral
disc disease effective from 14 July 2001, based on the results of an
examination conducted on 22 October 2001. The report of that
examination indicate that your condition had become much more severe
than it was when your were evaluated by the medical board and PEB,
from a subjective standpoint. The physician who examined on 22
October 2001 indicated that your subjective symptoms were grossly out of
proportion to the physical findings, which were similar to those made by
the medical board. Your were subsequenty awarded a 30% rating for a
depressive disorder which was secondary to your spinal condition. The
rating was effective from 17 May 2002.
The Board was not persuaded that your spinal condition was ratable above
10% disabling at the time of your discharge from the Navy. The
determination of VA rating officials that your condition was ratable at 40%
the day following your discharge was considered not probative of the
existence of error or injustice in your Navy record, because the VA rating
is not supported by objective findings, and the available evidence does not
demonstrate that you suffer from severe intervertebral disc disease.
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
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The VA assigned a40% rating for the back condition rated 5292-5293 citing severe limitation of motion of the lumbar spine. The discussed the C&P examination report that the CI held on a chair and compared that examination with prior examinations and concluded the examination confirmed characteristic pain on motion but did not evidence muscle spasm.The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.Although there was...
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