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

Docket No: 734-20 
Ref: Signature Date 

Dear : 

This letter is in reference to your application for correction of your naval record pursuant to Title 10, U.S. Code, section 1552.  Your case was remanded to this Board for Correction of Naval Records (Board) by the                  , filed 15 January 2020) and reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  You were previously denied relief by this Board.

1 The court order directed this Board to conduct further proceedings to address the validity of your claims of error in light of the Pilot Operations Manual and any other authority that governs participants in the DisabilityEvaluation System (“DES”) Pilot program. After careful and conscientious consideration of relevant portions of your naval record and your application for correction, 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, sitting in executive session, considered your application on 7 July 2020. Upon your request for an extension to submit a response to a relevant advisory opinion, and your subsequent submissions on 10 July and 13 July 2020, the same three-member panel of the Board reconvened on 16 July 2020, and again considered your application. 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, and in consideration of                         , filed 15 January 2020.  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, 
 
1 Petition NR20170005570 was considered and denied by a three-member panel of the Board that convened on 9 November 2017; petition NR20180003204 was considered and denied by a three-member panel of the Board that convened on 25 October 2018. 

as well as the enclosed 17 March 2020 advisory opinion, and your 10 July and 13 July 2020 submissions in response to the advisory opinion. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

to the Board to detail whether or not you suffered any errors or injustices in light of the Pilot Operations Manual and any other authority that governed participants in the DES Pilot program, and a determination regarding which evaluation controls when there is a conflict between the Navy and the Department of Veterans Affairs (VA) evaluation of Sailors participating in the Integrated Disability Evaluation System (IDES). 

You enlisted in United States Navy and began a period of active duty on 25 May 2000.  In 2006, you developed diagnosed gastrointestinal issues that resolved until approximately 2010.  You were later diagnosed with Crohn’s disease in June 2010.  After your Crohn’s disease was confirmed, you were eventually referred to a medical board that forwarded your case to the Physical Evaluation Board (PEB).  On 29 December 2011, Commander, U.S. Fleet Cyber Command/, provided a Non-Medical Assessment (NMA) on your behalf to assist the PEB’s determination of whether you were fit or unfit for continued naval service.  The NMA noted that since your diagnosis approximately one and a half years earlier, you had undergone four procedures and one major surgery.  The NMA also noted in part that your chronic medical condition limited your ability to perform assigned duties and responsibilities as an Intelligence Specialist within the command, and commented on your fatigue and mental state. 

On 29 February 2012, the PEB found you unfit for continued naval service for Crohn’s Disease with Irritable Bowel Syndrome as a related diagnosis. On 9 April 2012, the VA rated your Crohn’s disease as 30%disabling.  On 23 April 2012, the PEB adopted the VA’s rating and recommended that you be placed on the TDRL.  You accepted the PEB’s findings on 27 April 2012.  On 28 July 2012, you were placed on the Temporary Disability Retired List (TDRL) with a 30% disability rating. 
 
On 3 March 2015, while on the TDRL, you received a second Periodic Physical Examination (PPE).  The PPE noted, in part, that your symptoms of Crohn’s disease had been well-controlled with Cimzia (since 2013). The PPE report recommended continued evaluation of your condition with the Cimzia medication.  However, on 2 April 2015, the PEB recommended your separation from the Navy with a 10% disability rating for your Crohn’s disease based on the March 2015 
PPE report.  On 2 April 2015, an informal PEB recommended that you be separated from the TDRL with a 10% rating.  You requested reconsideration of the informal PEB’s 10% disability rating, and asked instead for a 50% disability rating.  You asked for a formal hearing before the PEB and requested that the PEB also consider other VA-rated service-connected conditions/disabilities.  

In June 2015, you asked a formal PEB to consider all of your medical conditions unfitting.  You requested consideration of your Crohn’s disease, Post Traumatic Stress Disorder, degenerative joint disc disease with cervical radiculopathy (cervical spine condition and right arm paresthesia), right shoulder degenerative joint disease, left shoulder degenerative joint disease, chronic lumbar strain, pes cavus bilateral ankles, internal hemorrhoids, and radiculopathy secondary to back issues.  During the formal PEB, you also made several objections to the ripeness of the PEB, asserting that the PEB was not considering other conditions that you believed were unfitting.  Nonetheless, the formal PEB concurred with the informal PEB’s findings.  The formal PEB determined there was insufficient evidence of occupational impairment for your requested other conditions at the time of your placement on the TDRL.  The formal PEB also concurred with the finding that Crohn’s disease continued to be unfitting but was in substantial remission based on the clinical TDRL PPE (March 2015).  Based on the substantial remission as documented by the PPE of March 2015, the formal PEB found that a reduction in your disability rating from 30% to 10% under VASRD Diagnostic Code (DC) 7399-7323 was warranted. Your improved and stabilized condition, while still unfitting for military service, did not meet the threshold percentage requirement for medical disability retirement.
 
You subsequently filed a Petition for Relief (PFR) on 28 August 2015, with the Director of the Council of Review Boards (CORB) that resulted in no change to the PEB findings after the conclusion of the formal board. You then sought relief before the U.S. Court of Federal Claims, which remanded the case to the Board, resulting in its consideration of your request for corrective action on 9 November 2017 (NR20170005570).
  
As part of the Board’s review in NR20170005570, advisory opinion dated 7 August 2017 was obtained from the CORB.  The CORB considered your contention that the 10% rating for Crohn’s disease was improper and should be increased to 30%, as well as your contention that additional conditions were unfitting or contributory to unfitness at the time of placement on the TDRL and that these conditions were not properly considered by the PEB. The advisory opinion concluded that the available evidence did not support your request and opined that a transfer to the permanent disability retirement list (PDRL) was not appropriate. You were provided a copy of the advisory opinion and submitted a rebuttal on 20 October 2017.  The Board concluded that, based on your remission status for Crohn’s disease as articulated in the March 2015 PPE report, the medical evidence supported the 10% rating issued by the PEB.  The Board also agreed with the PEB’s determination that there was insufficient evidence to support findings of unfitness for your other claimed disability conditions, as there was no medical evidence that military medical providers felt your other disability conditions required a referral to the DES.
  
In 2018, the Board reconsidered your request for relief (NR20180003204) and again denied your petition.  The Board again disagreed with your contentions and, in concurrence with its prior rationale for relief, found that the PEB and the CORB decisions were neither erroneous nor unjust in your DES case.  The Board’s 2018 decision noted that your NMA was an important factor in determining that there was insufficient evidence that you were unable to perform the duties of your office, grade, rank, or rating due to the disability conditions other than your Crohn’s disease.  The Board found that, despite evidence that you were unable to perform your duties to the best of your abilities, your record did not contain sufficient evidence of unfitness for continued naval service for disability conditions other than Crohn’s disease. In your current request for relief, the Board considered the Court-ordered remand of your case. Pursuant to the Court Order, the Board reviewed the validity of your claim of error in light of the Pilot Operations Manual and any other authority that governs participants in the DES Pilot program.  The Board also reviewed the issue of which evaluation controls where there is a conflict between the military’s evaluation of a Sailor who is participating in the IDES system and the VA’s evaluation of aSailor who is participating in the IDES system.   When considering the issue of the conflicting evaluations, the Board also reviewed the applicable authorities and regulatory guidance that applied in your circumstances. The Board noted your allegations that the Navy’s MEB, PEB, and CORB improperly failed to find unfitting numerous medical conditions from which the VA found you suffered and concluded were disabling.  Furthermore, the Board considered your contention that the 10% disability rating for Crohn’s disease is erroneous and unjust, and should be increased to the 30% rating as assigned by the VA. Finally, the Board considered your request, as articulated in your 13 July 2020 communication to the Board, for placement back on the TDRL pending the outcome of this matter. 

As part of the Board’s review, the Director, Secretary of the Navy, CORB, issued an advisory opinion dated 17 March 2020.

2 The advisory opinion considered in part which evaluation/rating controls when there is a conflict between disability ratings assigned by the Navy and by the VA for the same condition.  The advisory opinion stated that DTM-11-015, dated 19 December 2011, the regulatory guidance which implemented the DES Pilot Operations Manual, was applicable when you were discharged from the Navy on 28 July 2012, and placed on the TDRL.  The advisory opinion found that the Navy properly applied the VA’s 30%disability rating when you were placed on the TDRL, in accordance with DTM-11-015, which directed deference to such examination at that time.  However, on 5 August 2014, DTM-11-015 was cancelled and replaced with DODM 1332.18-V2.  Your second PPE occurred in March 2015; this second PPE occurred after the transition to the updated policy of DODM 1332.18-V2. Therefore, DODM 1332.18-V2 applied. 
 
In the spring of 2015, DODM 1332-18-V2 mandated utilization of VA disability ratings if both suitable (“examination and rating sufficient to adjudicate the veteran’s case”) and timely (that is “VA exam is . . . [not] older than 18 months” preceding the Navy PEB TDRL re-evaluation).  The advisory opinion found that neither the suitability requirement nor the timeliness (18 months prior) requirement had been satisfied.  Therefore, the PEB determined a disability rating in reliance on the results from the 3 March 2015 PPE.  The advisory opinion found that the PEB’s use of the 3 March 2015 PPE, which indicated stability without interim exacerbation, complied with the regulatory guidance of DODM 1332.18-V2. The Board substantively concurred with the advisory opinion and determined that the March 2015 PPE report reflected a stability in your Crohn’s disease that merited a decrease in the disability ratingfrom 30% to 10%. 

Separately, the advisory opinion also noted that, although the DES Pilot Program had expired prior to the 2015 TDRL DON PEB reevaluation process, the actions of the DON PEB were in compliance with the DES Pilot Program provisions before it was superseded by DODM 1332­2 Although the advisory opinion was dated 17 March 2020, it was not provided to BCNR until 29 May 2020. 

18-V2. Similarly, after cancellation of DTM-11-015, the DON PEB complied with the updated reference, DODM 1332.18-V2.  The advisory opinion found that the conflict between the VA’s 30% rating and the DON PEB rating of 10% was due to the absence of a VA future follow-up examination and disability rating review after your placement on the TDRL in 2012, and within the 18-month period prior to the mandated timeframe for conducting a TDRL PPE.  The advisory opinion concluded that the VA determination of a 30% rating at the time of placement on the TDRL was of significantly less probative value in determining your clinical status during the timeframe of your mandated TDRL PPE.
  
The advisory opinion was provided to you on 29 May 2020, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration on 7 July 2020.  Following the adjournment of the Board on 7 July 2020, the Examiner was informed that you submitted an email request after the close of business, at 6:32 pm, 6 July 2020, for an extension of time to respond to the advisory opinion.  Pursuant to the Board’s policy, because the 30-day deadline had expired and because your case had been boarded, your request for an extension was initially denied.  Nonetheless, you submitted a response to the advisory opinion on 10 July 2020, followed by a second submission on 13 July 2020.  As a matter of efficacy and based on your request for additional time, the Board determined that reconvening the original three-member panel was appropriate.  The three-member panel reconvened on 16 July 2020, and took into consideration your rebuttal submissions from 10 July 2020 and 13 July 2020. 
 
The Board noted that your 10 July 2020 submission take issue in part with the prior Board’s noting that you did not comment on the MEB findings.  The current Board did not consider your lack of commentary on the MEB as an indication of your agreement with the findings; the current Board noted that you have consistently raised your non-concurrence with the 10% rating and separation from the TDRL since the Informal PEB on 2 April 2015. 

The Board also noted that your 10 July 2020 submission, supported by Attachments A-E, contends that the advisory opinion did not adequately address the competing VA/Navy ratings for Crohn’s disease, and that the Board and the advisory opinion inexcusably disregard your other numerous unfitting conditions to include (a) PTSD, which is rated as 70% disabling by the VA, (b) Cervical Spine Degenerative Disc Disease rated as 10% disabling by the VA, (c) Left Shoulder Degenerative Joint Disease rated as 10% disabling by the VA, (d) Right Shoulder Degenerative Joint Disease rated as 10% disabling by the VA, (e) Chronic Lumbar Strain rated as 10% disabling by the VA, (f) Pes Cavus of the Ankles rates as 10% disabling by the VA, (g) Internal Hemorrhoids rated as 10% disabling by the VA, and (h) Radiculapathy secondary to back issues rated as 10% disabling by the VA.  The Board noted your contention that any one condition, especially the PTSD rated as 70% disabling could potentially make you unfit for service.  The Board noted that you claim that none of these conditions have been examined by the Navy. 
 
Even taking into consideration your rebuttal statements, the Board found that the advisory opinion’s discussion regarding the timing of the VA’s evaluation of Crohn’s disease from 2012 verses the second PPE in March 2015 supports the Navy’s reliance on the March 2015 PPE rather than deferral to the VA’s 2012 30% rating.  The Board concluded that the March 2015 PPE appeared to have evaluated your Crohn’s disease based on information you provided, and that PPE’s reporting that your symptom were well-controlled does not appear to have been made either erroneously or unjustly.  The Board found that the 2 April 2015 Informal PEB’s reliance on the March 2015 PPE to recommend a 10% rating and separation from the TDRL is supported by the information captured in the March 2015 PPE.  Furthermore, the Board found that the Informal PEB and subsequent formal PEB properly executed their duties accordance with the applicable regulatory guidance of DODM 1332.18 V2. 

The Board noted that your second rebuttal to the advisory opinion, dated 13 July 2020, included reference to your 26 June 2015 PEB Decision and your accompanying testimony as captured in the Transcript of Hearing, 17 June 2015.  You state that the CORB’s citingof twice-monthly Cimzia injections and Metamucil in the advisory opinion is inaccurate.  You detail your chronic impairment, contend that you did not receive Cimzia injections at all, state that you have been on Remicade and Humire without success, that you require twice the recommended dosage of Entyvio, and that other medications have seen only limited success. In your second rebuttal, you also ask to be placed on the TDRL pending the outcome of this matter. The Board noted that the Transcript of Hearing conducted on 17 June 2015, Attachment E, established that the 2015 formal PEB reviewed your assertion that your Crohn’s disease, VA code 7323 should be rated at 
30% or higher; reviewed your contention that you should be rated at 70% or higher for PTSD; and considered your claims that there were other disabling conditions to include: degenerative joint disc disease of C4/C5 and C5/C6 with cervical radiculopathy claimed as cervical spine condition and right arm paresthesia, right shoulder degenerative joint disease claimed as right shoulder sprain dominant, left shoulder degenerative joint disease claimed as left shoulder condition non-dominant, chronic lumbar strain claimed as lumbar spine condition, pes cavus ankles (one for each ankle/bilateral ankles), internal hemorrhoids, and radiculopathy secondary to back issues. In the Transcript of Hearing, page 84 of 148, you stated “The 3 March exam was part of my regular treatment.  Because I’m on Cimzia and I’ve been on it for a while . . . .”   The Transcript of Hearing captures a discussion of the stability of Crohn’s disease and its impact on your work attendance, to include being late to work or taking extended lunch/breaks.  The Transcript of Hearing also reflects a discussion of the additional medical conditions (in addition to Crohn’s disease and PTSD), for which there were “no (in-service) notes with regard to prescribed medication, physical therapy, limited duty.” Page 98 of 148. The Board concluded that based on the information you provided, that the formal PEB had accurate information regarding your stability and treatment for Crohn’s disease in June 2015, as reflected by both your March 2015 PPE and your testimony during the hearing on 17 June 2015.  The Board also concluded that the formal PEB considered your PTSD at a 70% rating from the VA and appropriately examined the other medical conditions which you claimed were unfitting.  The Board noted your assertions of error and injustice, and considered your claim that the advisory opinion cited inaccurate information.  The Board also considered your personal statement that your symptoms from Crohn’s disease have not gone into remission but have gotten worse. Nonetheless, the Board found that the information reflected in your service record and documented in the Transcript of Hearing support the formal PEB’s 26 June 2015 concurrence with the informal PEB findings, and support your removal from the TDRL with a 10% disability rating for Crohn’s disease. 

Even taking into consideration the information and additional evidence presented in your rebuttals, the Board concurred substantially with the March 2020 advisory opinion.  The Board found that your placement on the TDRL in 2012 was in accordance with the applicable guidance under DTM-11-015.  Additionally, the Board found that the 2015 PEB’s reliance on the clinical data from your March 2015 PPE, rather than a deference to the VA’s 30% rating as assigned in 2012, was appropriate under DODM 1332.18-V2.  Accordingly, the Board determined that the PEB and the CORB appropriately discharged you with severance pay at a 10% disability rating for Crohn’s disease in 2015, rather than placing you on the PDRL.  With regard to your request to be returned to the TDRL, the Board found that you had already received an appropriate review of your qualifying medical condition and of the conditions for which you wished to receive a isability/retirement rating as evidenced by the 2015 informal PEB, the formal PEB, and the PFR to the CORB.  The Board determined that despite your claims of your Crohn’s disease worsening, and even in consideration of your contentions of PTSD or other conditions rendering you unfit, that you were properly referred to the MEB and placed on the TDRL in 2012 for Crohn’s disease.  The Board found the evidence in your service record and as provided by you does not establish an error or injustice that warrants returning you to the TDRL for additional review or consideration.
  
With regard to your contention that your numerous other medical conditions were erroneously and unjustly not assessed by the MEB, the PEB, or the CORB, the Board noted that this issue was addressed by its 2017 and 2018 decisions. Advisory opinions dated 7 August 2017 were obtained as part of the Board’s review of your claims of error and injustice, and were concurred with and cited by your Boards.  The Boards previously found that the 10% ratingfor Crohn’s disease was issued without error or injustice, and that the evidence you submitted did not support a finding of unfitness for other claimed disability conditions because these conditions were not found to have impacted your performance of duty as articulated under SECNAVINST 1850.4 series.
  
In its present consideration of your claims, the Board concurred with its previous decisions denying your other claimed conditions, noting that your NMA from your chain of command referred you to the MEB/PEB process for Crohn’s disease.  The Board noted that your chain of command detailed the manner in which the Crohn’s disease impacted your ability to serve, and although fatigue and your mental state were mentioned, the referral to the MEB/PEB process appears to have been made due to the unfitting condition of Crohn’s disease.  The Board considered the totality of your record, and noted that prior to your placement on the TDRL in 2012, your medical evaluators had the opportunity to consider your other enumerated medical conditions and refer you to the MEB/PEB process.  The Board found that at the time you were placed on the TDRL, your other medical conditions do not appear to have rendered you unfit for purposes of referral to the MEB/PEB evaluation process nor upon review, were they found to merit a medical disability retirement and separation determination at the MEB, PEB, or CORB levels, as applicable, in 2012 or in 2015. .  The Board noted that SECNAVINST 1850.4 series provides that a finding of fitness for continued duty is based on evidence that establishes that a member is reasonably able to perform the duties of his or her office, grade, rank or rating.
  
Furthermore, under SECNAVINST 1850.4 series, the mere presence of a diagnosis is not synonymous with a disability.  Even in consideration of the VA’s post-discharge disability determinations and your contentions that your other conditions rendered you unfit, the Board again relied on the NMA, the subsequent medical evaluations, and the MEB, PEB, and CORB determination from 2012 and 2015, as applicable, to find that the other diagnosed conditions do not appear to have impacted your fitness for duty at the time of your placement on the TDRL.  Therefore, the Board again found that your record does not merit corrective action.  

Even in light of the issues raised in the current court-ordered remand, and noting your objection to both the 10% rating for Crohn’s disease and to the determination that your other medical conditions were not unfitting for purposes of a medical disability separation or retirement, the Board again found that your record does not reflect an error or an injustice.  The Board determined that your initial placement on the TDRL at 30% for Crohn’s disease in 2012, and your 2015 separation with a 10% disability rating for Crohn’s disease (based on the March 2015 PPE report) were executed in accordance with the applicable regulatory guidance and were neither erroneous nor unjust.   

It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters 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.

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,