Dear , 

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

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 15 November 2018.  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.  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.  In addition, the Board considered the advisory opinion contained in Director CORB letter 1910 CORB: 002 of 25 September 2018; a copy of which was previously provided to you for comment. 

A review of your record shows that you entered active duty with the Marine Corps in June 2009.  You suffered a spinal fracture on 1 July 2009 after falling from a wall during basic training.  As a result, you were found to be unfit for continued naval service by the Physical Evaluation Board (PEB) and placed on the Temporary Disability Retirement List (TDRL) with a 40% disability rating for your back condition.  On 23 February 2012, you underwent a TDRL periodic examination which revealed a forward flexion of 95 degrees before you experienced pain.  Based on this examination, the PEB found you unfit for continued naval service for your back condition but reduced your disability rating to 10% based on your forward flexion.  You were removed from the TDRL on 31 May 2012 and discharged with severance pay in accordance with the PEB findings.  On 25 April 2015, you reported the reemergence of back pain symptoms to your civilian provider.  You subsequently underwent nerve destruction surgery to alleviate the pain symptoms in August 2015.  As of 2017, the Department of Veterans Affairs (VA) has rated you for the following back related disability conditions: Right lower extremity radiculopathy (20%), Left lower extremity radiculopathy (10%), and L-1 vertebral body burst fracture (20%). 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list due to your continuing back problems.  Unfortunately, they disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion contained in Director CORB letter 1910 CORB: 002 of 25 September 2018.  Specifically, the Board found insufficient evidence that your back condition warranted a disability rating greater than 10% as of 31 May 2012, the date you were removed from the TDRL.  Similar to the PEB, the Board relied upon the 23 February 2012 TDRL periodic examination findings that showed you were able to forward flex your back up to 95 degrees on three occasions before experiencing pain.  Based on the VASRD 5235 criteria for vertebral fractures, a disability rating of 10% is appropriate when a member has a flexion greater than 60 degrees but less than 85 degrees.  The Board agreed with the advisory opinion when they determined that the PEB likely granted you a 10% rating after providing you the benefit of the doubt based on symptoms of back pain despite the fact you only warranted a 0% rating based on your flexion measurement.  Therefore, they concluded you were issued an appropriate, albeit generous, disability rating by the PEB.  Accordingly, the Board determined insufficient evidence of error or injustice exists to warrant a change to your record.
    
It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time.  You are entitled to have the Board reconsider its decision upon the submission of new and material evidence.  New evidence is evidence not previously considered by the Board.  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,