DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 
Docket No. 8130-15 
MAY 2 0 2016 

Dear
 
This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552. 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 for Correction of Naval Records, sitting in executive session, considered your application on 6 May 2016. 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, your naval record and applicable statutes, regulations and policies. 

A review of your record shows that you were referred to the Physical Evaluation Board (PEB) by a medical board on 13 September 2006 for right knee lateral meniscal tear, right.knee chondromalacia, right foot plantar fasciitis, right hip trochanteric bursitis, post ACL reconstruction, and history of lateral collateral and medial collateral ligament tears. On 21 September 2006, you acknowledged the findings of the medical board and did not provide any comments. On 3 November 2006, the PEB found your unfit for continued naval service due to right knee chondromalacia patellae and lateral meniscal tear. Your ACL condition was determined to have existed prior to entry and the other medical board referred conditions were determined not to be unfitting. On 9 November 2006, you accepted the findings of the PEB and were discharged in February 2007. Subsequent to your discharge, you received a number of service connected disability ratings from the Department of Veterans Affairs (VA) including a rating for fracture of left distal ulna bone, peripheral neuropathy and tendonitis of left hand and degenerative arthritis of thoracolumbar spine. 

The Board carefully considered your arguments that the medical board and physical evaluation board failed to consider your spine spondylosis and left distal ulna fracture as unfitting conditions. Unfortunately, the Board disagreed with your rationale for relief. First, the Board determined that there is insufficient evidence to rebut the presumption of regularity that the medical board and PEB considered both conditions. The medical board and PEB are both required to consider your medical record in their decisions and there is no evidence that they did not do so. The only evidence that they may not have considered the conditions is that the medical board did not to refer your conditions to the PEB and the PEB not to find them unfitting. Since there are other plausible and reasonable reasons for both of those actions, the Board was not convinced they simply failed to consider the conditions. Second, the Board determined you were provided the due process required under the regulations to comment and rebut the findings of the medical board and PEB. The fact you chose not to comment or contest either board convinced the Board that no injustice exists even if the Board failed to consider certain conditions. Finally, the Board was not convinced that you were unfit for continued naval service due to either condition. Your back condition existed since 2004 and you were able to continue serving with the condition for two additional years with treatment. Unlike your knee conditions, there was insufficient evidence that it caused an occupational impairment sufficient to warrant a finding of unfitness. You were treated with prescriptive and over the counter medication for the pain with no indication that you could not continue to perform with the assistance of the pain medication. Regarding your left distal ulna fracture, there was also no evidence in your record to support that the condition had a substantial occupational impairment while you were on active duty. The mere presence of a medical condition or specific correspondence of any manifestations thereof to an entry indicating a disability rating contained in the VA Schedule for Rating Disabilities is insufficient to warrant either a finding of unfitness for continued naval service or a specific disability rating by the PEB in the absence of demonstrated duty performance impairment of sufficient magnitude as to render a Service member unfit for continued naval service. Without evidence to show that it affected your work performance, the Board was not willing to change the PEB findings. Accordingly, the Board was unable to find an error or injustice warranting a correction to your record and denied your application. The names and votes of the members of the panel will be furnished upon request. 

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 evidence within one year from the date of the Board's decision. New evidence is evidence not previously considered by the Board prior to making its decision in this case. 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, 

Executive Director