DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51 00

JRE
Docket No. 05962-05
23 October 2006

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 October 2006. 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. In this connection, the Board substantially concurred with the enclosed rationale of the hearing panel of the Physical Evaluation Board which considered your case on 8 March 2005. The Board was not persuaded that you suffered from persistent stasis pigmentation of your leg, or that you were entitled to a disability rating in excess of 20%. Accordingly, 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 mmmd 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,

	W.	DEAN PFEIFFER
Executive Director

Enclosure

USMC (RET)

Rationale

The member was a 32-year-old male, Captain, USMC, (Ret.) with approximately 12
years and 5 months of service at the time he was placed on the Temporary Disability
Retired List (TDRL), on 13 December 2002, with a total disability rating of 40% under
VA code 7120, for the following diagnoses:

1.	RECURRENT VENOUS THROMBOSIS
2. ACTIVATED PROTEIN C RESISTANCE, POSSIBLY HEREDITARY

The member underwent periodic TDRL physical evaluation on 12 October 2004, at Army Community Hospital, Fort Carson, Colorado.

The Informal Physical Evaluation Board (PEB), considered the case on 20 December 2004, and found the member unfit for continued naval service due to a physical disability based on diagnoses 1 and 2 that were considered ratable at 10% under VA code 7120, with separation from the TDRL with Severance Pay.

The member disagreed with this finding and demanded a formal hearing.

A Formal PEB hearing was conducted on 8 March 2005, at Bethesda, Maryland,  USMC acted as the Presiding Officer, with Colonel USMC and Captain  MC, USN as board members. Lieutenant
JAGC, USNR represented the member.

The member appeared at the hearing requesting to be found unfit for continued naval service due to a physical disability based on diagnoses 1 and 2, that he considered ratable at 40% under VA code 7120, with the member retained on the TDRL.

To support his request the member presented testimony and the following new information that was not included in the PEB case file.

Exhibit Alpha: 79 pages of medical evidence, which included notes from South Park Internal Medicine, the medical evaluation board dated 02/01/02 and subsequent medical notes from San Diego Naval Medical Center, and the Veterans Affairs Department decisional rating document dated May/June 2003.

Exhibit Bravo: 1 page of non-medical evidence, which consisted of a letter of support from a co-worker.

The member’s Medical Treatment Record was not made available for review and Service Record excerpts were made available for review.

After careful review of all the available evidence and based on a unanimous opinion, the Formal PEB finds that the member is unfit for continued naval service because of a physical disability based on diagnosis 1. The record and evidence presented document

	the basis an unfit determination. This limits the member’s activities and assignability, which interferes with the adequate performance of required military duties.

	The member had recurrent episodes of venous thrombophlebitis with an episode of bilateral pulmonary emboli while on active duty. On work-up, he was noted to have a Factor V deficiency, an inherited disorder. Because of the recurrent episodes, he was placed on Coumadin anti-coagulation and will have to remain on this medication lifelong. Since placement on the TDRL, he continues to have swelling and fatigue with greater than 2 miles of running. He cannot do push-ups, but does modified sit-ups and pull-ups for exercising. His job entails walking distances of up to 7 or 8 miles per day. He notes that he gets left leg swelling especially if he does not wear the compression stocking. The swelling worsens throughout the day and lessens over night. Besides frequent monitoring of the Coumadin blood levels, the condition of the left leg has not changed significantly. On exam at the Board, there is minimal pretibial edema noted. There is no evidence of brawny induration, stasis pigmentation, or eczema. The VA decisional document rates the prior pulmonary emboli, which have resolved, at 60%. They also rate the left leg thrombosis at 10%. Based on the fatigue and the leg edema which may be intermittent or persistent, the appropriate level is 10-20 %. The condition is felt to be stable with respect to any time remaining on TDRL.

	Therefore, diagnosis 1 is most appropriately rated under VA code 7120 at 20%.

	Diagnosis 2 is considered Category II and is related to diagnosis 1. The condition is genetically inherited but the length of service (LOS) greater than 8 years voids the existed prior to service (EPTS) rule.

	The above ratings combine for a total disability rating of 20%.

	The disability is considered stabilized with respect to the remaining time of TDRL eligibility, and the member is to be Separated from the TDRL with Severance Pay

	     The disabling conditions are not considered combat-related.