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NAVY | BCNR | CY2007 | 09601-07
Original file (09601-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100






 JRE
 Docket No. 09601-07
8 April 2008





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 20 March 2008. 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 23 April 1997 and transferred to the Temporary Disability Retired List (TDRL) with a 40% disability rating for fibromyalgia. You underwent a final periodic physical examination on 25 October 2001, and reported significant improvement in your musculoskeletal symptomatology since your previous examination, which was conducted on 7 February 2000. You indicated that you had been able to discontinue several of your prescribed medications and limit the use of others. In the opinion of the rheumatologist who conducted the final periodic examination, your prognosis was good, although you remained unfit for duty and would likely require medications indefinitely to control your pain syndrome. On 28 January 2002, the Physical Evaluation Board (PEB) made preliminary findings that you remained unfit for duty, and that your condition was ratable at 20% disab]4ng. The PEB recommended that you be discharged with entitlement to disability severance pay. You initially rejected those findings and demanded a formal hearing; however, on 3 April 2002, you withdrew your demand for a hearing, and accepted the findings and recommendation of the
PEB. You were discharged in accordance with the approved findings of the PEB on or about 6 May 2006. The Department of Veterans Affairs has rated the fibromyalgia condition at 40% disabling since 24 April 1997.
Although the VA and the Department of the Navy employ the same disability rating schedule, the rating determinations of each department are made independently, and neither department is bound by the determinations of the other. A 40% rating is assigned in those cases where the symptoms of fibromyalgia are constant or nearly so, and refractory to therapy. Based on the results of your final periodic examination, it appears that your condition responded well to medication, improved significantly during your tenure on the TDRL, and was not refractory to therapy.
The Board was not persuaded that the final disposition of your case within the Disability Evaluation System would have been different if the PEB had been advised that you had completed more than eighteen years of active service.
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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