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

Docket No. 297-19 
Ref: Signature Date 

Dear , 

This is in reference to your application of 21 December 2018 for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 30 April 2020.  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.  In addition, the Board considered the advisory opinion contained in Director CORB letter 1910 CORB: 001 of 20 March 2020 along with your response to the opinion. 

A review of your record shows that you entered active duty with the Marine Corps in October 2010.  On 19 June 2012, you reported symptoms related to shortness of breath and were diagnosed with Paradoxical vocal cord dysfunction.  You were treated with therapy and assigned an inhaler for rescue purposes.  You last filled your inhaler prescription on 21 September 2012.  Subsequently, based on your continued symptoms, a medical board referred you to the Physical Evaluation Board (PEB) on 11 January 2013.  The PEB found you unfit for continued naval service on 9 April 2013 due to your Paradoxical vocal cord dysfunction and referred your case to the Department of Veterans Affairs (VA) for a proposed rating.  The VA proposed a 10% rating for your unfitting condition which was adopted by the PEB.  You requested reconsideration of the proposed VA rating but were denied a change on 4 June 2013. As a result, you were discharged pursuant to your PEB findings on 30 July 2013.  The VA subsequently assigned you a 30% rating for asthma effective 28 August 2013. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list based on the post-discharge VA rating for asthma.  You assert the PEB rating assigned to you was based on an erroneous VA proposed rating.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion contained in Director CORB letter 1910 CORB: 001 of 20 March 2020.  Specifically, the Board concluded that you did not meet the requirement for a 30% rating for asthma based on medical evidence you did not use a daily inhalant for a six-month period prior to your discharge from the Navy.  The Board relied on your medical records which documented your last prescription for an inhalant was filled in September 2012; approximately ten months prior to your discharge in July 2013.  The Board was not persuaded by your arguments that you qualified for a 30% rating based on the severity of your condition since you did not require use of a daily inhalant for the required period.  The Board also agreed with the advisory opinion that the VA likely misinterpreted your medical record when assigning you a post-discharge 30% rating since there is no medical evidence of daily inhalant use six months prior to your discharge from the Navy.  While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  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 the submission of new matters, which will require you to complete and submit a new DD Form 149.  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. 

Sincerely,