PEPARTMENT OF THE NAVY
BOARP FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

JRE
Docket No. 09780-06
28 November 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 pan~1 of the Board for Correction of Naval Records, sitting in executive session, considered your application on 9 November 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, to ether 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 r4tionale of the hearing panel of the Physical Evaluation Board which considered your case on 30 September 2003. A copy of that rationale is attached. The Board concluded that your condition was properly rated in accordance with the Department Veteran ~f fairs Schedule for Rating Disabilities, as modified by the more stringent criteria contained in SECNAVINST 1850.4E. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

Your request for correction of your rate on your DD Form 214 is administrative in nature and should be directed to the Commander, Navy Personnel Command, who may issue you a DD Form 215 to correct the error.

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,

This member is a 28 year-old, EM2, USN (RET), with approximately 3 years and 3 months of service at the time he appeared before a medical board. He was placed on the TDRL on 17 April 1998 with a total disability rating of 30% under VA code 6602 for the following diagnosis:

BRONCHIAL ASTHMA

The following diagnoses were considered Category III conditions:

2.	DECREASED GRIP STRENGTH, S/P SOFT TISSUE TRAUMA
3 NERVE INJURY TO THE ULNNR ASPECT OF PALM

The member underwent a periodic TDRL physical evaluation on ‘7 May 2003 at the Headquarters, 6”’ Medical Group, Macdill AFB, FL.

The Informal PEB considered the case on 7 July 2003 and found the member unfit for continued naval service due to physical disability, and to be separated from the TDRL with severance pay with a disability rating of 10% under VA code 6602 for diagnosis #1, BRONCHIAL ASTHMA. The member disagreed with this finding and demanded a formal hearing.

A formal hearing was conducted on 30 September 2003 at Bethesda, 
as Presiding  and	as panel members. member.

The member appeared at the hearing and petitioned to be found unfit for continued naval service with a disability rating of 30% under VA code 6602 for diagnosis Hi and transferred to the PDRL. To support his request, the member presented testimony and 4 pages of new medical evidence and 4 page of non-medical evidence. The member’s medical record and service record were not available for review.

After careful review of all the available evidence and based on unanimous opinion, the Formal PEB finds the member is unfit for continued naval service because of physical disability due to BRONCHIAL ASTHMA. The continued manifestation of symptoms precludes the adequate performance of military duties.

The periodic physical examination documents that since the member has been on the TDRL he has not required daily oral medications, any oral steroids, emergency room treatments or hospitalizations. The new medical evidence documented that the member was treated for asthma on 29 September 2003 in the emergency department at the National Naval Medical Center, Bethesda, MID. Pulmonary function testing performed on the day of the hearing revealed paradoxical results with the post-bronchodilator

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studies showing worse results. The pre-bronchodilator studies revealed an FVC of 81%, FEV1 of 76% and a ratio of 76%.

The member testified that he has coughing and wheezing and gets headaches from his medication. His symptoms are worse at night and early morning and have not been present during his pulmonary function tests. He uses inhalers almost every day including Asthmacort every 4-6 hours but is often off schedule and takes it at school when he remembers. The day prior to the formal hearing the member did not have his inhaler. He reported to the emergency room to obtain an inhaler. He described self-imposed limitations in his lifestyle to minimize the impact of this condition. He expressed his belief that had he not done so his condition would have been worse.

Diagnosis #1 is most appropriately rated under VA code 6602. The SECNAVJNST 1 850.4E requirements for a rating of 30% under this code are not met. The pulmonary function tests values showed a paradoxical response so the pre-bronchodilator results were used and they do not support a rating of 10%. The member was given the benefit of doubt with consideration given to his use of bronchodilators and a rating of 10% under VA code 6602 is recommended.

Diagnosis #2 and #3 remain Category III conditions.

The disability is considered stabilized with respect to the expiration of time in TDRL eligibility and the disability is considered permanent. Since the total rating is less than 30%, separation from the TDRL with severance pay is warranted.

The disabling conditions are not considered combat-related.
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