DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 7510-18 Dear This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (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 21 November 2019. 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 7 October 2019 along with your response to the opinion. A review of your record shows that you entered active duty with the Marine Corps in May 1979. After transitioning to the Marine Corps Reserve, you were mobilized in support of combat operations in December 2005. During your deployment, you suffered a right shoulder injury while exiting a helicopter. You underwent surgery in February 2007 and January 2008 before a medical board referred you to the Physical Evaluation Board (PEB) for chronic right shoulder pain status post acromioplasty and open Mumford procedures. On 17 December 2008, the PEB found you fit for active duty. You were again found fit for active duty upon reconsideration by the PEB on 11 February 2009. A formal PEB hearing was convened on 9 April 2009 which determined you were unfit for continued naval service due to your right shoulder condition and assigned you a 10% rating. You filed a Petition for Relief (PFR) on 11 June 2009 which was denied on 18 June 2009. After your PEB findings were finalized, your case was cancelled due to your approved retirement request. On , you were transferred to the Retired Reserve awaiting pay at age 60 list. The Department of Veterans Affairs (VA) rated you for a number of disability conditions prior to and after your PEB case was adjudicated. You were assigned a 20% rating for your right shoulder impingement with residual scar effective 2008. In 2018, the Board of Veterans Appeals determined your 20% rating for your shoulder impingement with arthritis and limitation of motion was appropriately rated at 20% but assigned you a 30% rating for right shoulder impingement with recurrent dislocations along with a 10% rating for right shoulder surgical scarring. The Board carefully considered your arguments that you were not properly rated by the PEB for a number of disability conditions that were identified as service connected. Additionally, you assert that the PEB improperly rated your unfitting condition. You requested to be placed on the disability retirement list with at least a 50% disability rating. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the opinion contained in Director CORB letter 1910 CORB: 002 of 7 October 2019. Specifically, the Board found the evidence did not support a change to your PEB record. Despite the arguments raised in your rebuttal to the advisory opinion, the Board determined that the preponderance of the evidence supports the 10% rating assigned to your unfitting condition. As pointed out in the advisory opinion, the range of motion measurements contained in the medical board report show that you exceeded the “midway between side and shoulder level” limitation to qualify for a 30% rating. So regardless of the VA’s decision to rate your right shoulder impingement at 20% or the VASRD Code used to rate your unfitting condition, the Board felt the medical evidence supports the 10% rating assigned to your unfitting condition. Additionally, the Board was not convinced by your arguments that you would have qualified for a higher rating based on a shoulder impingement with recurrent dislocations since the Board found no evidence you suffered from recurrent dislocations while in the Marine Corps. While the Board noted that you suffered from right shoulder instability, they concluded this was insufficient evidence of recurrent dislocations needed to qualify for a rating under VASRD Code 5202. Further, the Board also disagreed with your argument that your VA assigned rating for your scar was unfitting. The Board agreed with the advisory opinion that the medical records do not provide sufficient documentation of an occupational impairment due to your scar. The fact your scar condition was not referred as a separate disability condition to the PEB was another factor in the Board determination that the preponderance of the evidence does not support a finding that it was a separately unfitting disability condition. Finally, the Board also found the medical evidence did not support a finding that other disability conditions rated by the VA were unfitting. The Board concurred with the rationale provided in the advisory opinion why the listed disability conditions did not create a sufficient occupational impairment to prevent you from performing the duties of your office, grade, rank or rating. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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 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 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.