DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 00021-0838
9 March 2010
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 4 March 2010. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Boar@. 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
advisory opinion furnished by the Director, Secretary of the
Navy Council of Personnel Boards dated 23 November 2009 and your
response thereto. A copy of the advisory opinion is attached.
The Director is an active duty Marine Corps colonel who has
cognizance over the Navy Disability Evaluation System (DES) and
several Department of the Navy review boards. Among his duties
is to act for the Secretary of the Navy on requests for relief
from final actions of the DES. His opinions are prepared with
the advice and assistance of his senior legal and medical
advisors.
The Board also considered the contents of your Department of
Veterans Affairs (VA) claims folder. Among the records in that
Folder are two civilian health record entries of note which you
did not submit in support of your application. An entry dated 23
December 2003, following your return from Irag, contains the
following under the heading “SUBJECTIVE”:
“Michael presents with worsening left knee pain from his
arthritis. He has been doing a lot of skiing lately. He notes a
pretty constant soreness in his left knee. The patient denies
any locking, giving way, but noted some mild swelling.”
An entry dated 14 June 2006, during your tenure on the Temporary
Disability Retired List, contains the following entry under the
heading “SUBJECTIVE?” :
“This is a 49-year-old gentleman here for evaluation of right
knee pain he has had now for about a month or so. He has had a
history of being seen at The Rothman Institute for his left
knee. He did undergo left knee total arthroplasty in the past
and that is doing great. The right knee has started to bother
him. He is a very active person who does a lot of umpiring both
for softball and for soccer so he is constantly on his knee and
that is when it bothers him the most. Rest and taking it easy
does seem to help. He has never had any surgeries on the right
knee. He does not have any other complaints.”
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 comments contained in the advisory opinion.
The Board was not persuaded that you are entitled to additional
disability ratings from the Department of the Navy, or that any
of your conditions directly resulted from a combat related
event. Accordingly, your application has been denied. The
names and votes of the members of the panel will be furnished
upon request.
It ig 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,
EAN P
Executive Di
Enclosure
AF | PDBR | CY2012 | PD2012 01787
Left Leg and Right Knee Conditions. The Board opined that the totality of the available evidence supports that the CI’s left leg condition of healed fractures of the femur and tibia resulting in valgus deformity with painful, limited ROM and mild to moderate instability most nearly met the 30% disability rating at the time of permanent separation.After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of...
AF | PDBR | CY2009 | PD2009-00085
The medical basis for separation was left knee pain. The Board unanimously recommends that at the time of separation, the low back pain was not unfitting and is therefore non-ratable. These other conditions are all judged by the Board to be not unfitting at separation from service, and are not relevant for disability rating.
AF | PDBR | CY2009 | PD2009-00543
The IPEB considered the case, and found him unfit for continued military service due to Chronic Achilles Tendinosis. As noted above, the CI underwent MEB/PEB, and the Right Achilles Tendinosis (coded 5284) was rated at 10% disability. Based on that evaluation, the VA assigned a rating of 10% for Traumatic Brain Injury with Headaches (coded 8045-8100), 10% for Cognitive Disorder with Sleep Disorder (coded 8045-9304), and 10% for Tinnitus (coded 6260).
AF | PDBR | CY2011 | PD2011-00294
Persistent left wrist pain and degenerative changes on the wrist joint were forwarded to the Physical Evaluation Board (PEB) as two separate medically unacceptable conditions IAW AR 40-501. Additionally left wrist fusion, left wrist scar, depression, and several other non-acute conditions were noted in the VA rating decision proximal to separation, but were not documented in the DES file. Left Wrist Pain5099-500310% COMBINED10%...
AF | PDBR | CY2011 | PD2011-01029
Although the PEB adjudicated “bilateral knee” as the unfitting condition, the record of proceedings reflects separate codes and ratings for each knee, with application of the bilateral factor in computing the combined rating, which is consistent with VASRD standards. No other conditions were service-connected with a compensable rating by the VA within 12 months of separation or contended by the CI. Exhibit C. Department of Veterans Affairs Treatment Record
AF | PDBR | CY2011 | PD2011-00593
When I was injured, I tried to work and perform as I always had but was unable due to the pain in both knees from my injury. Accordingly, the Board recommends a separate service disability rating for each knee. In the matter of the bilateral knee pain, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5259-5010 and rated 10%, and an unfitting left knee condition coded 5259-5010 and rated 10%, IAW VASRD §4.40,...
AF | PDBR | CY2009 | PD2009-00429
Examinations from May 2005 by a civilian neurologist show difficulty with right foot dorsiflexion, a lot of pain laterally on the leg from the knee down, especially on the foot with any tactile stimuli or with movement. The VA rated the CI’s disability under a peripheral neuropathy code but included the functional motor loss and therefore was not limited to rating the disability at the moderate level. The CI had motor weakness most likely due to pain documented on multiple examinations as...
AF | PDBR | CY2012 | PD2012 00629
The left knee PCL tear condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialtyor satisfy physical fitness standards.Hewas placed on limited duty andreferred for a Medical Evaluation Board (MEB).The MEB forwarded left knee PCL tear, surgically treated; left knee chondromalacia of the medial femoral condyle, surgically and medically treated; and left knee effusion, medically and surgically treated for Physical Evaluation Board...
AF | PDBR | CY2010 | PD2010-00383
The Board notes that the CI contends that the left lower radiculopathy, abnormal MRI and EMC/NCV were overlooked by the PEB. An exam at a pain clinic, three weeks later, showed normal sensory and motor exams with normal deep tendon reflexes. I have carefully reviewed the evidence of record and the recommendation of the Board.
AF | PDBR | CY2011 | PD2011-00079
CI CONTENTION : The CI states: “As rated by the Department of Veterans Affairs upon separation, both conditions were given a higher rating: Major Depression initially rated at 10% was changed to Bipolar Disorder currently rated at 50% disabling; Psoriatic Arthritis initially rated at 10% is currently rated at 20% with knees rated in addition at 40% - reduced to 20% due to (an appealed) pre-existing condition.” The PEB’s 10% rating using the 5009 code (arthritis, other types) reflected...