DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 04090-09
19 February 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 19 February 2010. 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.
You enlisted in the Marine Corps on 22 September 1997. On 21
August 2000, while still on active duty, a Department of
Veterans Affairs (VA) rating official determined that you were
entitled to vocational rehabilitation services due to a spinal
disorder that was ratable at 20% or higher. On 29 September
2000, the Physical Evaluation Board (PEB) determined that you
were fit for duty notwithstanding your lower back condition, and
directed that you be returned to duty. On 31 August 2001, you
completed a Report of Medical History in which you falsely
denied that you had ever submitted a claim for pension or
disability benefits. You were examined by a military health care
provider on that date and found qualified for separation. You
were released from active duty on 21 September 2001 by reason of
completion of required active service, and assigned a reentry
code of RE-1A. You submitted a claim to the Department of
Veterans Affairs (VA) on 22 September 2001 for disability
benefits for lumbosacral strain, insomnia and radiculopathy of
the left leg and foot. You reenlisted in the Marine Corps on 31
January 2002. The available records do not indicate whether or
not you disclosed the aforementioned VA claim at that time. You
began to seek medical care for low back pain on a very frequent
basis about three months after you reenlisted, and continued to
do so for the remainder of your naval service. On 21 March
2003, the VA awarded you disability rating of 0% for
radiculopathy and lumbosacral strain from 22 September 2001 to
30 January 2002, when the ratings were suspended due to your
return to active duty. The VA denied your request for service
connection for insomnia.
Due to your continued complaints of low back pain, the paucity
of objective evidence of spinal disability, and the
determination that there had not been a significant change in
the lower back condition since it had been evaluated by the PEB
several years earlier, medical authorities recommended that you
be discharged for the convenience of the government by reason of
a condition, not a disability, which interfered with your
service. You were so discharged on 6 January 2004. The VA
increased the rating for lumbosacral strain to 20% effective 7
January 2004. You submitted a claim for service connection for
depression on 12 October 2004, and the VA awarded you a rating
of 30% for a mood disorder associated with lumbosacral strain on
31 August 2006, with an effective date of 12 October 2004.
The Board concluded that your receipt of service connection and
disability compensation from the VA is not probative of the
existence of error or injustice in your naval record. In this
regard, the Board noted that the VA assigned ratings to the
lumbosacral strain and radiculopathy without regard to the issue
of your fitness to reasonably perform military duty prior to
your discharge, and that the rating you received for a mood
disorder was based on your condition more than eighteen months
after you were discharged from the Marine Corps. The VA did so
in accordance with its regulations, which do not apply to the
military departments, which permit the VA to assign and modify
disability ratings at any time after a veteran has been
separated or retired.
In the absence of evidence which demonstrates that you were
unfit for duty on 6 January 2004, the Board was unable to
recommend any corrective action in your case. Accordingly, your
application has been denied. The names and votes of the members
of the panel will be furnished upon request.
tt 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,
Wen Plog
W. DEAN sa
ccor
Executive Di
AF | PDBR | CY2011 | PD2011-01032
The Board further deliberated if additional disability was justified for radiculopathy in this case. RECOMMENDATION : The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: I have carefully reviewed the evidence of record and the recommendation of the Board.
AF | PDBR | CY2013 | PD2013 02110
His also complained of sleep issues,which were considered to meet retention standards. Surgery was not indicated.The MEB separation examination on 5 May 2009 (6 months prior to separation) noted no back tenderness or muscle spasm. The VA examination meanwhile showed completely normal ROM and no additional limitation after repetition.
AF | PDBR | CY2013 | PD2013 01325
SEPARATION DATE: 20040902 Available treatment records evidence a history of intermittent lower back pain which was first documented August 2000. The physical examination was normal except for tenderness to palpation throughout the neck, thoracic and lumbar spine.
AF | PDBR | CY2014 | PD-2014-01114
The PEB rated the depression at 10% using code 9434 (Major Depressive Disorder) and determined the pain disorder was a Category II condition related to the back pain, while the VA rated the depression 30% also using code 9434. Additionally, his symptoms improved with psychotherapy and continuous medication thereby favoring a 10% rating, although the NARSUM noted his back condition was “complicated by his morbidity of depression” and the addendum noted “the condition alone [was] so severe...
AF | PDBR | CY2014 | PD-2014-02065
The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The MEB physical exam performed 7 months prior to separation noted tender posterior cervical muscles, pain limited range-of-motion (ROM) and normal strength both upper extremities. The CI’s low back pain (LBP) began...
AF | PDBR | CY2011 | PD2011-00008
This was the CI’s second medical separation for his back condition. All evidence considered, there is not reasonable doubt in the CI’s favor supporting re-characterization of the PEB fitness adjudication of not unfitting for anxiety (PTSD) to a separately unfitting condition at the time of separation. The Board determined therefore that none of the stated conditions were subject to service disability rating.
AF | PDBR | CY2009 | PD2009-00731
After his 2003 deployment, he denied any symptoms of PTSD. Other PEB Conditions . In the matter of the lower back condition (back pain and leg pain), the Board unanimously recommends a rating of 10% (coded 5237) IAW VASRD §4.71a.
AF | PDBR | CY2009 | PD2009-00250
The CI was referred to the Physical Evaluation Board (PEB), determined unfit for continued Naval service, and separated at 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Naval and Department of Defense regulations. The CI had a previous Limited Duty (LIMDU) Board in October 2001 after a seven year history of low back pain. Therefore the CI’s back condition is rated using the General Rating Formula for Diseases and Injuries of the Spine.
AF | PDBR | CY2014 | PD-2014-00775
In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of his mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed during that process. No diagnosis of any MH condition was forwarded by the MEB or adjudicated by the PEB;...
AF | PDBR | CY2014 | PD-2014-01418
The CI’s chronic bilateral foot pain, chronic low back pain (LBP), plantar fasciitis and pes planus conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The IPEB did not address the remaining conditions (plantar fasciitis, pes planus and adjustment disorder).The CI appealed to the Formal PEB (FPEB) which reaffirmed the IPEB’s findings for the chronic low back condition as unfitting, rated at 10%, but changed the chronic foot pain (bilateral) diagnosis to bilateral...