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NAVY | BCNR | CY2003 | 02436-03
Original file (02436-03.pdf) Auto-classification: Denied
DEPARTMENTOFTHE NAV

Y

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

JRE
Docket No. 02436-03
29 August 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 28 August 2003.
Your allegations of error
and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
of your application, together with all material submitted in
support thereof, your naval record and applicable statutes,
regulations and policies.

Documentary material considered by the Board consisted

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.

Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon
request.

The names and

The Board found that you underwent a pre-separation physical
examination on 17 May 1999,
for separation,
experiencing lower back and right leg pain, which had been
diagnosed as atypical sciatica and possible degenerative disc
disease.
As you were about to depart on terminal leave, you

notwithstanding the fact that you were

and were found physically qualified

L3-4 level; circumferential bulging of the 
thecal sac without impingement of the L5 nerve root; and a

apparently elected to undergo an MRI examination in order to
document the condition of your spine.
The results of the MRI
indicated that you had no bulging,
extrusion or protrusion at
the 
the 
large right paracentral extrusion at the 
compromising the right foramina,
nerve root.
indicates that you were going on terminal leave, and would
follow-up with the Department of Veterans Affairs.
voluntarily released from active duty on 20 June 1999, and
assigned a reenlistment code of 
eligible and recommended for reenlistment.

A note at the bottom of the MRI "wet read" report

with impingement on the 

RE-lA, to indicate that you were

L5-Sl level

annulus indenting

You were

Sl

You stated that your

you were able to perform your

You were found to have good range of

On 21 June 1999, based on a review of your service medical
records, the VA assigned you a 10% rating for a herniated
nucleus pulposus at the 
LS-Sl level, based on the mild symptoms
of intervertebral disc syndrome reflected in those records. You
were examined at a VA facility on 15 July 1999. You reported
that despite your back symptoms,
duties as an EMT for two ambulance companies, which involved
lifting heavy stretchers.
You also stated that your back was
very sore by the end of a day at work, but you did not report
any gait disturbance.
spinal motion, with slight sensory deficit.
you underwent an examination in connection with your request for
an increased VA disability rating.
condition had been aggravated on 6 September 1999.
that you had played golf that day,
then went home and watched television.
up from the floor because of back pain,
right lower extremity.
underwent a hemilaminectomy with discectomy at the 
9 September 1999.
cleared to return to work on 1 November 1999.
convalescent rating of 100%
from 5 September to 1 November 1999;
thereafter, a 40% rating was assigned, based on your report that
your back pain had become more severe, and was constant.
rating was confirmed on 12 June 2000,
examination conducted on 1 June 2000.
you complained of continued pain and fatigue, and stated that
you had missed three days of work because of your symptoms.
reported that you could stand and sit for two to three hours,
walk five miles a day,
and climb and descend stairs without
problems.
medications, use a brace, or apply heat or cold.
2002, the rating was increased to 60% based on an increase in

which you did every day, and
You were unable to get
which radiated to the

based on the results of an
During that examination,

In addition, you stated you did not take any

You did well post-surgically, and were

You were brought to a hospital, and

That

You

L4-5 level on

You received a

On 5 October 1999,

You reported

On 28 January

your symptoms, and a 10% rating was added for a scar at the site
of your back surgery.
individual unemployability.

On 26 March 2002, you were granted

The Board noted that in order for a service member who has not
completed twenty years of active duty service to be retired by
reason of physical disability,
he must be unfit for duty because
of a condition or conditions ratable at 30% or higher.
Although
you had symptoms of spinal pathology prior to your release from
it does not appear that you were unfit for duty at
active duty,
that time. As noted above, you received a reenlistment code of
RE-lA, which indicates that you could have reenlisted and
remained on active duty had you wanted you.
apparently stable for several months following your release from
active duty, and you were able to engage in strenuous physical
activities during that period.
severity of your condition that occurred after you were released
from active duty, and particularly after you underwent surgery,
is a matter within the purview of the VA, rather than the
Department of the Navy.

The unfortunate increase in

Your condition was

In view of the foregoing, your application has been denied.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken.
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board.
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.

You are entitled to have

In this regard,

Sincerely,



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