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NAVY | BCNR | CY2009 | 00021-09
Original file (00021-09.pdf) Auto-classification: Denied
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

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