DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 2000-19 
Ref: Signature Date 

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.  Your case was reconsidered in accordance with procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  You were previously granted relief by the Board on 13 October 2016.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 18 July 2019.  The names and votes of the members of the panel will be furnished upon request.  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, relevant portions of your naval record and applicable statutes, regulations and policies.  

The Board carefully considered your arguments that your Physical Evaluation Board (PEB) record should be changed to increase your disability rating to 100% based on the recent Department of Veterans Affairs (VA) decision to increase your disability rating for your Pulmonary Embolism.  Unfortunately, the Board disagreed with your rationale for relief.  The Board concluded your PEB record is correct with your currently assigned 60% rating that was changed by this Board in 2016.  The 60% rating was based on a  November 2013 disability rating issued by the VA contemporaneous with your placement on the Permanent Disability Retirement List (PDRL).  This Board determined the November 2013 rating was an accurate assessment of your disability condition since disability regulations direct the PEB to rate unfitting disability conditions as of the date of a service member’s release from active duty.  In your case, that date is October 2013.  However, the  decision of the VA to increase your disability rating to 100% for your Pulmonary Embolism was not seen as an accurate assessment of your disability condition at the time of your release from active duty in 2013, since it occurred over five years after your active duty release date and reflects the worsening of your disability condition over the years since your release from active duty.  Additionally, the Board found no evidence the VA made a determination that its original 60% rating from November 2013 was issued in error.  Therefore, the Board concluded the 60% rating remains an accurate assessment of your Pulmonary Embolism condition on October 2013.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

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 matters. New matters are those not previously presented to or 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. In the absence of sufficient new evidence for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction.

Sincerely,