DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

JRE
Docket No. 07721-09
27 July 2009

 

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, reconsidered your
application on 23 July 2009 as directed by the United States
Court of Federal Claims. 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, the administrative record compiled by
government counsel, your naval record, an unsigned memorandum
dated 1 October 2001 prepared by Lieutenant Commander Barbara A.
Smith, Medical Corps, US Navy Reserve (USNR), and applicable
statutes, regulations and policies. In addition, the Board
considered the advisory opinions furnished by the Director,
Secretary of the Navy (SECNAV) Council of Review Boards (CORB)
dated 16 April and 1 May 2009, and the Rules Counsel, Office of
the Judge Advocate General (OJAG), dated 3 June 2009, and your

- counsel's submission of 22 July 2009. A copy of each of the
advisory opinions is attached.

 

As a preliminary matter, the Board found that your file contains
several documents prepared by your attorney, government counsel,
and officials of the Department of Veterans Affairs (VA), which
indicate that you served on active duty in the Navy from 27
January 1976 to 25 June 1979, and from 22 January 1986 to 31
January 2002. Documents in your official military personnel
file (OMPF}) show that you reenlisted in the Navy Reserve on 20
December 1988, and in the Regular Navy on 19 June 1989, and that
you entered on extended active duty on the latter date. You had
no military status during the period from 26 June 1979 to 19
December 1988. ,

The Board considered your application and all pertinent records
in accordance with the provisions of SECNAV Instruction
5420.193, enclosure (1), Procedures of the Board for Correction
of Naval Records (codified at 32 CFR 723), paragraph 3e. After
careful and conscientious consideration of the entire record,
the Board confirmed its findings of 23 September 2004 that you
failed to submit sufficient evidence to establish the existence
of probable material error or injustice in your naval record. In
addition, the Board substantially concurred with the comments
contained in the advisory opinions. ,

The Board was not persuaded that you suffered from any unfitting
conditions at the time of your discharge other than major
depression, or that you should have received any disability
rating other than the 10% rating you accepted on 4 October 2001.
The Board disagreed with the recommendation of the Director,
CORB, that it amend your disability findings by classifying the
anxiety and posttraumatic stress disorders as category II
conditions, as it appears that the record can be amended
administratively by the President, PEB. In addition, such an
amendment would not accord you effective relief because your
final disability rating would remain at 10%.

The Board was not persuaded that the legal advice you received
from then Lieutenant Pintar was materially erroneous, or that
you would have received a disability rating of 30% or higher had
your case been considered by a hearing panel of the Physical
Evaluation Board (PEB). The Board agreed with Lieutenant
Pindar’s conclusion that a hearing panel of the PEB might have
found you fit for duty, in which case you would have been faced
with the possibility of administrative separation. In the
Board's experience, the initiation of separation action for the
convenience of the government is very common im cases where a
service member has been found fit for duty and is subsequently
found unsuitable for sea duty, deployment or overseas service
because of the existence or effects of a medical condition that
was not considered unfitting by the PEB. Given the number and
subjective effects of your medical conditions, being found
suitable for sea duty, overseas service and/or deployment would
have been problematic had you fully disclosed your medical
history to the medical examiner. In addition, the Board noted
that you were described as “obese” in the 14 March 2001 addendum
to your medical board report and reportedly weighed 233 pounds,
approximately 50 pounds above your ideal weight as subsequently
determined by VA health care providers. This suggests that you
might have been processed for separation for failing to conform
to Navy weight and body composition standards had the PEB found
you fit for duty. If you had been administratively discharged
for either of those reasons, you would have been entitled to
involuntary separation pay in accordance with the provisions of
DoD Instruction 1332.29, albeit in a substantially lower amount
than your disability severance pay entitlement. The Board did
not have sufficient information before it to determine what
actions would have ensured the best opportunity for you to earn
a retirement from the Navy Reserve.

The Board was troubled by your lack of candor and credibility
with regard to your medical history and state of health. It was
particularly troubled because you received numerous medical
board diagnoses and ultimately substantial disability
compensation from the VA based on your unverified, subjective
representations concerning the nature and severity of your
claimed disabilities, which Navy physicians and VA rating
officials apparently accepted as true. Those physicians and
rating officials might have reached different conclusions had
they been aware of the factors which demonstrate your lack of
candor and credibility.

The Board found that you underwent evaluation and treatment for
numerous medical conditions during your first enlistment and
ten-year break in active service. Among those conditions are
back, hip and knee pain; tachycardia or heart palpitations;
blurred vision; sinusitis, prolonged headaches; hay fever;
respiratory allergies; urethritis; shortness of breath; possible
rheumatoid arthritis; rapid breathing; a feeling that your body
and head were expanding; hypertension; possible hypothyroidism;
sharp chest pains; feeling lightheaded over an extended period
of time; disturbing feelings of euphoria; nervousness; feeling
hyper-tense and constantly nauseated because of nervousness, for
which Valium was prescribed; and out of control shaking. Two
medical record entries dated 2 February 1976 indicate that you
were thought to be in need of neuropsychiatric (NP) evaluation
or treatment, and that you were advised to report to the NP
clinic the following day.
During the 1979-1989 period, you received treatment from VA
health care providers for multiple conditions such as hip, back
and knee pain, chronic recurrent foot pain, allergies, and
possible ankylosing spondylitis, and you were prescribed several
anti-inflammatory and pain medications for foot and post-
surgical wrist pain. On 13 September 1985 you complained that
your foot pain had been worse during cold weather, and you
expressed concern about the pain medications you had been
taking. Your condition was assessed by a physician as chronic
recurrent plantar fasciitis. On 17 October 1985 your feet were
examined and found to be “extremely sensitive” and paradoxically
to have decreased sensation. Your foot and hip complaints were
assessed as painful bilateral soles and possible trochanteric
bursitis, respectively. The treatment plan was to inject the
scars on your feet with steroids and prescribe a pain
medication. You complained of hip, knee, and foot pain on 13
March 1986. Your back condition was assessed as “rule-out”
ankylosing spondylitis, although it was thought your pain was
more likely attributable to “soft tissue rheumatism’. Your VA
‘file contains a civilian medical record dated 27 July 1965,
which predates your first enlistment by more than ten years, and
indicates that hypothyroidism should be ruled-out because of
your complaints of tachycardia and shortness of breath. You were
hospitalized from 19 to 22 June 1986 for surgical removal of a
ganglion cyst on your wrist, and you advised VA physicians that
you had been diagnosed with “MVP”. The Board presumed that MVP
is an abbreviation for mitral valve prolapse, which may be
disqualifying for entry in the military service if symptomatic.
As your private medical records were not available for review by
the Board, it was unable to determine if you received any
diagnoses or treatment from non-VA health care providers during
your break in service.

On 5 March 1988, at age thirty years and six months, you
completed a Standard Form (SF) 93, Report of Medical History, in
connection with your application for enlistment in the Navy
Reserve. You reported a history of “Tumor, growth, cyst, cancer”
which apparently pertained to the fibrous tissue that had been
removed from your feet, and “Foot trouble”. You specifically
denied all other significant medical history, to include most of
the conditions noted above. You did not disclose the period of
hospitalization and surgery you underwent in 1986 or any of the
medical care you received from the VA after 1981, and you
answered “No” to the question posed in item 20 of the SF 93,
“Have you ever had any illness or injury other than those
already noted”, You apparently told the Navy flight surgeon who
reviewed the SF 93 that you had not had any significant medical
or surgical history since 1981, and you submitted a statement
fron aie wae. , dated 25 February 1988, which is as
follows: “

 
 

Gnas Stine has [sic] no problem with his feet since
his last surgery in 1981”. The flight surgeon examined you at a
Navy/Marine Corps Reserve Center on 5 March 1988 and found you
qualified for enlistment notwithstanding your previous discharge
by reason of physical disability, bilateral foot condition, and
elevated blood pressure. You completed an SF 93 on 24 February
1989 in connection with your application for enlistment in the
Regular Navy and entry on active duty, and disclosed a medical
history. which is substantially the same as that you disclosed on
5 March 1988. You were examined at a Military Entrance
Processing Station (MEPS) on that date and found not physically
qualified for enlistment because of your foot condition. Your
blood pressure was found to elevated, but the physician who
examined you apparently did not consider it disqualifying. On 17
April 1989, you stated that you continued to receive disability
compensation from the VA in the amount of $138.00 per month,
which troubled the Board because of your representations and
statement from Dr. Fiel to the effect that your foot condition
had been asymptomatic since 1981. The Commander, Navy
Recruiting Command granted you a waiver of physical standards
for an asymptomatic bilateral foot condition on 31 May 1989, and
you reenlisted on 19 June 1989. Shortly thereafter, you began to
seek medical care on a rather frequent basis and received
evaluation and treatment of many of the conditions you had
failed to disclose when applying for enlistment in 1988 and
1989.

You completed several SFs 93 after you reenlisted in which the
extent of your disclosure of your medical history varied
Significantly. You made fairly extensive disclosures in the SFs
93 you completed in connection with required pentennial
examinations. You completed an SF 93 on 14 May 1996 as part of
an assessment of your suitability and physical qualification for
overseas service, and failed to disclose significant aspects of
your medical history. You might not have been found suitable
for overseas service had you disclosed your entire medical
history, which could have led to administrative separation
processing. On 17 April 2001, you completed an SF 93 for “MED
Board Sep. Exam Pkg.”. It was to your advantage at that time to
fully disclose your medical history, and you disclosed a history
of thirty-seven conditions, to include several that existed
prior to your initial enlistment in 1976 or pre-dated your
reenlistment in the Navy Reserve in 1988, such as shortness of
breath, heart palpitations or tachycardia, hypertension and a
possible thyroid disorder.

The Board carefully considered your attorney's submission of 23
July 2009, and concluded that nothing contained therein
demonstrates the existence of material error or injustice in
your naval record or warrants granting your request for
correction of your record to show that you were retired by
reason of physical disability. The Board rejected the
contention that it and the Director, CORB, failed to adequately
weigh the “factual findings” of your mental condition. The
medical board gave you four diagnoses of mental disorders:
posttraumatic stress disorder, severe; major depression,
moderate; anxiety disorder not otherwise specified; and
complicated bereavement. While it is the responsibility of the
medical board to formulate diagnoses, a medical board is not
permitted to make findings of unfitness for military duty or
assign disability ratings, as those functions are within the
purview of the Secretary of the Navy acting through the PEB. The
fact that a disorder is classified as severe by a medical board
does not require the PEB to find the disorder unfitting.
Similarly, in cases where the PEB finds a mental disorder
unfitting, the medical board classification of the disorder as
minimal, miid, moderate or severe does not require the PEB to
assign a particular percentage rating to the disorder. As the
PEB did not find the posttraumatic stress disorder to be
unfitting, and you have not persuaded the Board that the PEB
erred, there.is no basis for granting your request for a
disability rating for that disorder. The contents of the non-
medical assessment provided by your former commanding officer,
which was requested by the PEB, did not require the PEB to find
any of the twenty-seven conditions described in the medical
board report unfitting and ratable.

As many of the findings of the medical board were based on your
subjective complaints rather than objectively verifiable
evidence, and given your lack of credibility as a medical
historian and submission of false information to facilitate your
reenlistments in 1988 and 1989, the Board questioned the
veracity of your complaints, as well as the validity of the
diagnoses of mental disorders referred to the PEB. You were
given a diagnosis of posttraumatic stress disorder because you
had been exposed to verified stressors, and you claimed to have
most of the hallmark symptoms of posttraumatic stress disorder.
It was unclear to the Board if you actually experienced those
symptoms, or if your claim was false. The author of the medical
board report noted that your [reported] inability to function
was out of proportion to your physical symptoms, which he
attributed to the exacerbation of your physical conditions by
your mental health condition. While his assessment might be
correct, Board believes that the disparity might be attributable
to your desire to maximize your disability entitlements. As
noted by the Director, CORB, VA officials opined in a report
dated 2 October 2002, that the results of neuropsychiatric
testing you underwent after you were discharged were
inconsistent with the results of your general mental status
examination, and that as “unconsciously or consciously poor
performance” [by you during the testing] had not been ruled out,
they were precluded them from assigning an Axis I diagnosis
under the diagnostic criteria contained in the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition.

The Board rejected your contention that you “never received
notice” of your rights before the medical board and PEB. The
medical board report indicates that there had been no past
finding of mental incompetency or incapacity, and that you were
considered fully competent to be discharged to your own custody.
In addition, the medical board determined in accordance with the
provisions the Manual of the Judge Advocate General, chapter 14,
paragraph 1404, that you were mentally capable of handling your
own financial affairs. The unsigned memorandum from Dr. Smith
dated 1 October 2001 does not establish that you were unable to
understand and participate in the disability evaluation process,
or provide a reasonable basis for further medical board or PEB
action in your case. There is no indication in your initial VA
rating decision that you were mentally incompetent or incapable
of managing your affairs. The Board noted that despite the
severity of your posttraumatic stress disorder as assessed by
Dr. Smith, you were not undergoing psychotherapy when the .
statement was prepared because of the lack of “trauma
therapists”, and that you and Dr. Smith agreed that you would
not undergo therapy while you remained in San Diego “due to the
length of time and intensity of involvement required for this
type of therapy”, even though Dr. Smith believed you required
“intensive, constant psychotherapy”.

The Board considered your attorney’s argument concerning the
issue of “Equitable Tolling”, but found nothing in the argument
that is probative of the existence of error or injustice in your
naval record.

As posttraumatic stress disorder was not found to be an
unfitting condition, the provisions of 38 CFR 4.129 are
inapplicable to your case. As a point of information, however,
the Board noted that Department of Defense Directive 1332.39,
which was in effect when your case was being evaluated by the
PEB, provided, in effect, that although certain, but not all,
minimum ratings specified in the VA Schedule for Rating
Disabilities were to be applied by the military department PEBs,
convalescent rating were not to be applied. The military
departments apparently considered 38 CFR 4.129 to specify a
convalescent rating, similar to that specified in 38 CFR 4.128,
and they did not apply its provisions. The issue became moot on
17 July 2009 when the Deputy Under Secretary of Defense (Plans),
performing the duties of the Under Secretary of Defense
(Personnel and Readiness}, issued a memorandum in which she
directed the military correction boards to apply the provisions
of 38 CFR 4.129 in the case of each applicant discharged by
reason of physical disability after 11 September 2001 because of
posttraumatic stress. disorder “where a grant of relief is
appropriate”, and assign a disability rating of not less than
50% for an initial period of six months following separation,
with subsequent fitness determinations and ratings to be based
on the applicable evidence.

With regard to the conditions listed in “THEORY OF LAW AND
ARGUMENT” paragraph d of your attorney’s submission of 22 July
2009, the Board was not persuaded that any of those conditions
rendered you unfit by reason of physical disability. Your
contention that the Board failed to consider those conditions is
not accurate, as the Board considered each of them during its
initial review of your application in 2004, as well as on 23
July 2009. Neither you nor your attorney clearly or persuasively
articulated in what respect the Board’s consideration of your
case was deficient, or why you believe the listed conditions
were unfitting at the time of your discharge. Many of the
conditions, or their precursors, existed prior to your
reenlistment in 1989 or began shortly after you reenlisted, and
did not significantly affect your ability to perform your duties
for many years. As your attorney acknowledges, the fact that a
veteran receives disability compensation for a condition does
not establish that the condition rendered the veteran unfit for
military duty. Your bilateral foot condition is a good example
of this. You received a disability rating and substantial
monetary compensation for that condition for about eight years
after the condition reportedly became asymptomatic. The rating
and compensation were suspended upon your reenlistment in 1989
and reinstated the day after you were discharged by reason of
physical disability in 2002. The rating was assigned without
regard to the issue. of your ability to reasonably perform your
military duties. Another example is your mild hypertension,
which existed throughout your career and did not significantly
impair your ability to perform your military duties, but was
rated by the VA at 10% because you needed continuous medication
to control the hypertension.

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,

Lat

W. DEAN PFEIFFRR(

Executive Dire
Encls