From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) Title 10 U.S.C. 1552 (b) Petitioner rebuttal letter of 21 August 2020 Encl: (1) DD Form 149 (2) Psychiatric Advisor CORB letter 1910 CORB: 002 of 18 June 2020 (3) Director CORB letter 1910 CORB: 001 of 13 July 2020 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 Petitioner’s naval record be corrected to place him on the disability retirement list with an increased disability rating for his sciatic radiculopathy condition and additional findings of unfitness for his muscle injury and Post-Traumatic Stress Disorder (PTSD). 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 10 September 2020, 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 the 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 entered active duty with the Marine Corps in July 2010. In December 2011, he received a gunshot wound to his right buttock while on leave that subsequently resulted in lower back, radiculopathy, and mental health symptoms. After completing an intensive outpatient PTSD program in March 2016, a medical board referred Petitioner to the Physical Evaluation Board (PEB) for Puncture wound with foreign body right buttock, Spondylosis with radiculopathy lumbosacral region, PTSD, erectile disorder, and Sciatica right side. Petitioner non-medical assessment documented that his symptoms restricted his ability to conduct duties of a Marine in the field or in his MOS. c. On 19 June 2016, the PEB found Petitioner unfit for his sciatic radiculopathy but concluded that his other referred conditions were not separately unfitting. The Department of Veterans Affairs (VA) proposed disability ratings of 10% for Petitioner’s sciatic radiculopathy along with a 50% rating for his PTSD and 30% for his right buttocks muscle injury due to the gunshot wound. The PEB adopted the proposed rating of 10% for Petitioner’s unfitting condition on 28 September 2016 leading Petitioner to request a formal hearing. The formal hearing was conducted on 12 January 2017 and determined that Petitioner was fit for active duty based on his performance history and recent reenlistment that indicated his was not significantly impaired by his disability conditions. Additionally, the PEB concluded that Petitioner’s muscle injury was likely healed after approximately five years. Petitioner subsequently filed a Petition for Relief that reverted the PEB findings back to the original findings. After Petitioner requested reconsideration of the proposed VA ratings in his case, the VA affirmed its 10% rating for his sciatic radiculopathy leading Petitioner to be discharged on 31 August 2017 with severance pay. d. In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to change his PEB record and place him on the disability retirement list determined that the evidence partially supports his request. The opinion states that the evidence supports finding Petitioner unfit for continued naval service for his PTSD in addition to his sciatic radiculopathy with a combined rating of 60%. However, the opinion states that insufficient evidence exists to find Petitioner’s muscle injury unfitting since Petitioner’s injury likely healed over time or that the PEB erroneously rated his sciatic radiculopathy based on the proposed VA rating. In reference (b), Petitioner provided a rebuttal argument that his muscle injury was severe based on the VA rating assigned and his injury had not healed due to the existence of a bullet in his buttock. Additionally, Petitioner asserts that his occupational impairment was documented in his medical record and the PEB failed to consider the combined effect of his conditions in deciding his case. Finally, Petitioner argues that the PEB has the authority to upwardly deviate from proposed VA ratings and the medical evidence supports a higher rating for his sciatic radiculopathy. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial relief. In this regard, the Board concurred with the Advisory Opinions at enclosures (2) and (3). Specifically, the Board agreed that Petitioner’s PTSD was an unfitting condition based on his extensive treatment record for his condition, including his intensive outpatient participation from January 2016 through March 2016, and should be rated at 50% based on the proposed VA ratings of 5 August 2016. Regarding Petitioner’s sciatic radiculopathy rating, the Board did not find sufficient evidence of error or injustice to merit a change. The Board relied on the fact the VA twice considered the medical evidence in Petitioner’s case and concluded that a 10% rating was appropriate based on his symptoms. The Board also considered that Petitioner was able to pass the Marine Corps Physical Fitness Test (PFT) in May 2015 with a first class score despite his sciatic radiculopathy. While the Board acknowledged that the condition likely met the criteria for unfitness, in their opinion, the impairment was minimal and supports the assigned 10% rating. The Board also concluded that Petitioner’s muscle injury was not separately unfitting. The Board concurred with the rationale of the advisory opinions and formal PEB in concluding that Petitioner’s injury had, more likely than not, healed over the years despite the existence of the bullet in his buttock. Again, the Board felt Petitioner’s ability to complete a first class PFT less than 12 months prior to medical board referral as strong evidence that his muscle injury did not create a sufficient occupational impairment to merit a finding of unfitness. The Board considered Petitioner’s argument regarding the combined effect of his disability conditions but concluded this argument was not persuasive since Petitioner was determined to be unfit separately for PTSD and his sciatic radiculopathy. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by placing Petitioner on the Permanent Disability Retirement List for Right Sciatic Radiculopathy Following Gunshot Wound To Right Buttock, VASRD 8520 at 10%, and PTSD, VASRD 9411 at 50%, with a combine rating of 60% effective the date of his discharge. Petitioner’s unfitting conditions were not combat-related. Petitioner will be issued a new DD Form 214 consistent with these changes. 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.