From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD ICO   
 
Ref: (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 w/attachments 
 
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to establish Petitioner’s entitlement to a combat related determination for his PEB determined unfitting condition and increase to his disability rating to 100%.    
                                              
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 14 January 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of naval records, and applicable statutes, regulations and policies.   
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: 
 
     a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. 
 
     b.  Petitioner reentered active duty with the Navy in February 2011 after completing an earlier enlistment.  In 2003, he developed Post-Traumatic Stress Disorder symptoms after completing a deployment to  in support of Operation Iraqi Freedom.  However, he continued to serve on active duty until a medical board referred him to the Physical Evaluation Board (PEB) in May 2010 for a number of disability condition including PTSD.  On 16 Jul 2010, the PEB found Petitioner unfit for PTSD with Anxiety Disorder as a related diagnosis and concluded his condition was not incurred as a result of a combat-related injury.  He was assigned a disability rating of 50% based on a proposed Department of Veterans Affairs (VA) disability rating for his PTSD and transferred to the Temporary Disability Retirement List (TDRL) effective 29 October 2010. 
 
     c.  On 12 April 2013, the VA granted Petitioner’s appeal of his PTSD rating and retroactively increased Petitioner’s rating to 100% effective 29 October 2010.  However, Petitioner underwent a periodic TDRL examination that documented his PTSD symptoms were mild to moderate and controlled with medication as of 23 July 2015.  Based on the TDRL examination report, the PEB found Petitioner unfit for his PTSD but lowered his disability rating to 30%. Again, the PEB concluded Petitioner’s PTSD condition did not result from a combat related injury.  Petitioner was ordered to be transferred to the Permanent Disability Retirement List (PDRL) in October 2105 after his PEB findings were finalized.  There is no evidence Petitioner appealed the PEB combat related determination to the Office of the Judge Advocate General prior to requesting relief from this Board. 
                                     
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that the preponderance of the evidence supports increasing Petitioner’s PEB assigned disability rating to 100% for his PTSD from the date of his placement on the TDRL until he was transferred to the PDRL.  Based on the VA’s decision to change Petitioner’s rating to 100% effective the date after he was released from active duty, the Board concluded that a 100% rating for his PTSD was supported by the preponderance of the evidence effective 29 October 2010.  However, the Board also concluded that the preponderance of the evidence supports the PEB decision to lower Petitioner’s disability rating to 30% prior to placing him on the PDRL.  Based on the periodic TDRL examination report of 23 July 2015 that superseded the VA examination results from 3 March 2013, the Board concluded Petitioner’s PTSD symptoms had improved significantly by 2015 and supported a disability rating of 30% since he only suffered from mild to moderate symptoms of PTSD. 
 
Regarding Petitioner’s request to change his PEB findings to reflect his PTSD was a disability condition that resulted from a combat related injury as defined by Title 26 U.S. Code Section 104(b)(3), the Board determined Petitioner had not yet exhausted his administrative remedies by appealing the PEB combat related determination to the Office of the Judge Advocate General, Administrative Law (Code 131).  Board regulations require Petitioner to exhaust their administrative remedies with the Department of the Navy prior to applying for relief from this Board.  Consequently, the Board concluded that Petitioner may reapply to the Board on the combat related determination issue after completing his appellate process with Code 13.  
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by changing Petitioner’s PEB assigned disability rating from 50% to 100% effective the date of his placement on the TDRL until his transfer to the PDRL.  Petitioner’s PDRL disability rating of 30% shall remain unchanged. 
 
4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 
 
5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.