DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 06432-09
1 October 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 30
September 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 20 February 2002. You were on
limited duty from 27 April 2007 to 13 February 2008, when you were
recommended for administrative separation due to lumabago, somatic
dysfunction of the lumbar region, and facet syndrome. You were
advised that while referral to the Physical Evaluation Board was an
option, it was likely that you would be found fit for duty because
of the minimal objective evidence of pathology seen in x-ray and MRI
studies. You apparently elected to proceed with administrative
separation processing. After being advised of your rights in
connection with the proposed discharge, you waived the right to
appear before an administrative separation board or to otherwise
contest the separation action. You were honorably Gischarged for the
convenience of the government on 11 May 2008. On 24 June 2008, the
Department of Veterans Affairs (VA) granted you service connection
and disability ratings of 30% for posttraumatic stress disorder with
post-concussive syndrome; 20% for degenerative disc disease of the
lumbar spine; and separate ratings of 10% for residuals of a head
injury, right and left knee conditions, and bilateral tinnitus, for
a combined rating of 60% effective the day following your discharge
from the Marine Corps.
Four receipt of a combined disability rating of 60% from the VA is
ae probative of the existence of error or injustice in your naval
record because the VA rates all conditions that were incurred in or
aggravated by a veterans service without regard to the issue of the
veteran's fitness for military duty at the time of release from active
duty or discharge. Unlike the VA, the military departments rate only
those conditions that render a service member unfit for duty. While
et is possible that your back condition would have been found
unfitting by the PEB, it does not appear that it would have been
ratable at 30% or higher, which is the minimum rating you would have
required in order to qualify for disability retirement. The Board
was not persuaded that any of the other conditions rated by the VA
rendered you unfit for duty at the time of your discharge.
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,
\ere
W. DEAN FRI
Executive ctor
NAVY | BCNR | CY2009 | 02421-09
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 8 April 2010. Your receipt of VA disability ratings for multiple conditions is not probative of the existence of material error or injustice in your naval record because the VA assigned those ratings without regard to the issue of your fitness for Military duty at the time of your release from active duty. Consequently, when applying for a correction of an...
AF | PDBR | CY2009 | PD2009-00730
The CI was then medically separated with 10% disability rating. The Board considered whether the CI’s radicular symptoms were separately unfitting, warranting a disability rating at the time of separation. Service Treatment Record.
AF | PDBR | CY2011 | PD2011-00031
All of these conditions should have been found to be separately unfitting, and I ask the Board to both find them unfitting and render appropriate military disability ratings for them.” He additionally lists all of his VA conditions and ratings as per the rating chart below. Other PEB Conditions . Service Treatment Record
AF | PDBR | CY2012 | PD2012 01821
After the disc decompression procedure performed 8 months prior to separation, the CI did experience relief from the radicular symptoms while his back pain persisted. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.As discussed above, PEB reliance on DoDI 1332.39 for rating chronic back...
AF | PDBR | CY2009 | PD2009-00490
The Navy PEB adjudicated the lumbar radiculopathy condition (pain radiating to the right leg without motor impairment and with minimal sensory impairment) as unfitting, while finding the underlying intervertebral disc disease with associated painful motion of the back to be not unfitting. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. RECOMMENDATION : The Board recommends that the CI’s prior...
AF | PDBR | CY2011 | PD2011-00765
Back Condition . Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher...
NAVY | BCNR | CY2003 | 01691-03
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 on 9 September 1997, the Physical Evaluation Board (PEB) made preliminary...
NAVY | BCNR | CY2010 | 04901-10
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 17 March 2011. Your receipt of disability ratings from the VA is not probative of the existence of error or injustice in your naval record because the VA assigned those ratings without regard to the issue of your fitness for naval service as of 28 October 2009. Consequently, when applying for a correction of an official naval record, the burden is on the applicant...
AF | PDBR | CY2009 | PD2009-00699
The medical bases for the separation were chronic low back pain, herniated L4-5 disc, and chronic left L-5 radiculopathy. The PEB adjudicated herniated L4-5 disc condition unfitting rated at 10%, and chronic left L5 radiculopathy as unfitting rated 10%. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s 10% rating decision for the chronic low back pain condition, coded 5237.
AF | PDBR | CY2011 | PD2011-00945
The CI was then medically separated with a 20% disability rating. The Board first considered whether the CI’s lumbar spine condition and radiculopathy condition were separately unfitting conditions warranting separate ratings. Although the unfitting radiculopathy condition was related to the CI’s spine condition, the impairment interfering with duty was the radicular pain due to scar tissue, not lumbar pain.