DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 04458-10
31 January 2011
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 27
January 2011. 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 served on active duty in the Navy from 2 October 1996 to 12 August
2000, when you were released from active duty by reason of
insufficient retainability. You submitted a claim for disability
compensation to the Department of Veterans Affairs (VA) on 13
September 2000. On 16 October 2001, the VA granted your request For
service connection for conditions of your right knee and left great
toe that were rated at 10 and 0 percent, respectively. The VA
deferred acting on your request for service connection for nine
additional claimed disabilities. Ons December 2001, the VA awarded
you separate 0 percent ratings for cervical strain and residuals of
a back injury, and denied your request for service connection for
conditions of your left knee, right great toe, right and left ankles,
right wrist, left elbow and right hip. You completed a Report of
Medical History on 21 February 2002 in connection with your
application for reenlistment in the Navy. You disclosed a history
of recurrent back pain, as well as a knee injury, and reported that
you had received VA compensation for a knee condition. You failed
to disclose that you had applied to the VA for service connection
and disability compensation for the eight other conditions noted
above.
“You reenlisted in the Navy on 27 February 2002, after receiving a
waiver of your disqualifying knee condition. You were evaluated by
tthe Physical Evaluation Board (PEB) on 30 April 2004 and found fit
for duty notwithstanding your complaints of hip pain, chronic lumbar
strain, genitofemoral nerve neuritis, and pelvic pain. You accepted
the finding of the PEB on 12 May 2004, and waived your right to demand
a full and fair hearing before the PEB. On 14 September 2004, you
were discharged for the convenience of the government by reason of
a “condition not a disability”. The specific condition is not shown
in the available records.
The Board did not accept your unsubstantiated contention to the
effect that you were unfit for duty by reason of physical disability
that resulted from mistreatment by your doctor and lack of adequate
medical attention and care. As noted above, you were found fit for
duty by the PEB, and you accepted that finding, which suggests that
you felt that you were fit for duty at that time. The fact that you
were subsequently discharged by reason of an unknown “condition not
a disability” does not demonstrate that you were unfit for duty by
reason of physical disability. In addition, the Board noted that the
increase in severity of your conditions that occurred during the
years following your discharge is a matter within the purview of the
VA, which, unlike the military departments, may change a veteran’s
disability rating at any time as conditions warrant.
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,
WD Door
W. DEAN PFE
Executive DNrte -
AF | PDBR | CY2009 | PD2009-00733
During his first period of active duty service, the CI presented for care of hip pain, but completed training and was playing soccer the month prior to discharge. CI CONTENTION : The CI requests disability rating for his bilateral hip osteoarthritis, status post right total hip replacement contending the condition was incurred by military service. At the time of C&P examination the CI was having symptoms but he had stopped taking medications since separation from the military.
ARMY | BCMR | CY2009 | 20090006666
The applicant requests, in effect, that her disability rating be increased to 30 percent or more (i.e., a medical retirement). However, evidence of record shows the PEB found her physically unfit due to chronic bilateral knee pain only and she was rated 0 percent for slight/occasional pain. Consequently, due to the two concepts involved, an individuals medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability.
AF | PDBR | CY2014 | PD-2014-02079
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 examiner noted X-rays of both hips performed on 12 August 2009 were normal.At the VA Compensation and Pension (C&P) examination on 29 October 2009, 9 months after separation, there was full ROM of both hips with...
AF | PDBR | CY2012 | PD2012 01894
CI CONTENTION : “Medical Board combined Right and Left conditions as one and left off pes planus from diagnostic evaluation. All members agreed, however, that separate ratings (unilateral or bilateral) under separate codes was not compliant with VASRD §4.14 (avoidance of pyramiding), which specifies that “the evaluation of the same manifestation under different diagnoses are to be avoided.” Specifically a separate compensable rating for pes planus, as contended by the CI and conferred by...
AF | PDBR | CY2011 | PD2011-00189
X-rays were normal, but bilateral weight-bearing X-rays performed four months later showed pes planus. The NARSUM examiner (two weeks later) recorded a history of mild bilateral ankle pain, which was considered not unfitting by the PEB and rated 0% by the VA. The Board considered that the presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.
ARMY | BCMR | CY2008 | 20080012532
That is why the VA can rate the applicant for having medical conditions even though those same conditions did not make him unfit to perform his military duties. The PEB found the applicant to be unfit under VASRD code 8626 due to chronic neuritis in his left leg, including wounds to the left proximal medial thigh, and recommended he be discharged with severance pay with a 20 percent disability rating. If he should ask the VA to rate him for PTSD, and if he received even just a 10 percent...
AF | PDBR | CY2011 | PD2011-00615
PHYSICAL DISABILITY BOARD OF REVIEW SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was Reserve HM2/E-5 (HN/8404), medically separated for discogenic low back pain (LBP). Other PEB Conditions .
AF | PDBR | CY2012 | PD-2012-00314
Those disabilities include: hypothyroidism, degenerative joint disease: right hip, left hip right knee, and left knee and post‐surgery hammertoes with continued toe numbness. Left Knee and Right Hip Condition. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: VASRD CODE RATING 5099‐5003 COMBINED 10% 10% Right Hip and Left Knee Pain UNFITTING CONDITION The following documentary evidence was...
AF | PDBR | CY2010 | PD2010-00996
The Board therefore has no reasonable basis for recommending the ankle condition for separation rating. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating. I have reviewed the subject case pursuant to reference (a) and, for the reasons set forth in reference (b), approve the recommendation of the Physical Disability Board of Review Mr. XXXX’s records not be corrected to reflect a change in either his characterization of...
AF | PDBR | CY2011 | PD2011-00961
The second Reconsideration PEB adjudicated the bilateral plantar fasciitis as unfitting, rating it 20%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). If this is the case, please review, in addition to the 20% rating given for my feet, the conditions the Army PEB determined to be fitting for military service, namely by [ sic ] migraine headaches, back pain, and hip pain. The ratings for the unfitting bilateral plantar fasciitis condition will be...