DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 5991-02
28 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 21 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 released from active duty on 27 April 1992
and transferred to the Temporary Disability Retired List (TDRL), with a
disability rating of 100% for testicular cancer. You underwent a final
periodic medical examination on 2 August 1999, and your cancer was found to
be in remission. As you had been treated with bleomycin and you continued
to smoke cigarettes, you were felt to be at increased risk for interstitial
pulmonary fibrosis. It was recommended that you avoid situations requiring
a fraction of inspired oxygen greater than 35%, as that could also lead to
pulmonary fibrosis. After reviewing the report of that examination on 14
April 2000, the Physical Evaluation Board (PEB) made preliminary findings
that you were unfit for duty because of residuals of your cancer, which it
rated at
0%. You rejected those findings and demanded a formal hearing; however, on
6 July 2000, you withdrew that demand, and accepted the findings of the
PEB. You were discharged by reason of physical disability effective 2
August 2000. On 11 April 2000, the Department of Veterans Affairs (VA)
determined that the residuals of your cancer and treatment therefor were
ratable at 0%. On 17 October 2002, the VA granted you service connection
and a 30% rating for depression, effective from 26 April 2001, after
determining that the depression was
secondary to your cancer.
The Board was not persuaded that you suffered residual physical effects of
your cancer that were ratable above 0% disabling as of the date of your
discharge. The 17 October 2002 action of the VA was not considered
probative of the existence of error in your Navy record, because the VA is
permitted to add disability, increase and decrease disability ratings
throughout a veteran’s lifetime, whereas fitness and rating determinations
made by the military departments are fixed as of the date of separation or
permanent retirement. As the available records do not demonstrate that you
suffered from an unfitting depressive disorder at the time of your
discharge, there is no basis for assigning you a rating for depression.
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
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