DEPARTMENT OF THE NAVY
BOARD FOR CORRECTIO OF NAVAL RECORDS
701S. COURTHOUSEROAD,SUITE 1001 ARLINGTON,VA  22204-2490

Dear·

RJO
Docket No. 3984-15
MAY 2 0 2016

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for correction of Naval Records, sitting in executive session, considered your application on 22 April 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 reqord and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion contained in Director, Secretary of the Navy, Council of Review Board (CORB) ltr 5220 CORB: 002 of B March 2016 and your response to the advisory opinion.

A review of your record shows you entered active duty with the Navy in May 2002.	By 1 June 2011, your Myofascial Pain Syndrome, Cervicalgia, and Fibromyalgia were determined to be a sufficient impairment to your ability to perform your duties to warrant referral to the Physical Evaluation Board (PEB). On 26 Aug 2011, the informal PEB determined you were unfit for continued naval servce due .to your Myofascial Pain Syndrome condition with Cervicalgia and Fibromyalgia as contributing conditions.	As part of the Integrated Disability Evaluation System, the Department of Veterans Affairs (VA) issued a disability rating of 10% for your unfitting Myofascial Pain Syndrome condition. On 29 November 2011,the formal PEB considered your case after you requested a formal hearing .	The formal PEB affirmed the decision of the informal PEB and concluded that a number of other disability conditions were not unfitting based on a lack of evidence to support
an occupational impairment.	After the VA denied your request to reconsider their disability rating of 10%, you accepted the findings of the formal PEB and waived your right to a Petition for Relief on 22 March 2012.	Subsequent to your discharge, the VA issued additional service connected ratings for Chronic thoracolumbar/back -muscular spasm/strain with scoliosis, thoracic spine degenerative spondylosis,

Docket No. 3984-15

and lumbar disc disease and Radiculopathy for left and right lower extremities.

The Board carefully considered your arguments that you deserve to be placed on the Permanent Disability Retirement List as a result of your disabilities. You contend the PEB failed to diagnose and rate conditions for which you exhibited symptoms while on active duty; conditions that were later determined to be service connected by the VA.	Unfortunatey, the Board disagreed with your rationale for relief.	In making their decision, they substantially concurred with the CORB advisory opinion of B March 2016 and disagreed with your comments to the advisory opinion. As pointed out in the formal PEB decision and advisory opinion, there was insufficient evidence to support a finding of unfitness for continued naval service for conditions other than those determined to be unfitting. The fact the VA determined you suffered from service connected disabilities is not dispositive of the issue of whether you qualify for a disability  ratin from the PEB.	The VA determines disability ratings based upon an evaluation of whether and how an individual's capacity to perform in the civilian world is diminished by a disability and eligibility is tied to the establishl'!lent of service connection and is manifestation­
based without a requirement that unfitness for military duty be demonstrated. So, although a VA rating decision may be relevant to consideration of an appropriate disability rating by the Navy, it is not binding on the Navy.	The Board concluded that without additional evidence to show that your new VA rated disability conditions substantially impaired -your ability to perform your duties in addition
- to your other unfitting conditions, no change to the PEB's decision was warranted.	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

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