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

Docket No. 7655-18 
Ref: Signature Date 

Dear

This letter is in reference to your reconsideration request dated 27 August 2018.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board rocedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  
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. 

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 20 February 2020. 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. Additionally, the Board considered the advisory opinions contained in Director CORB letter 1010 CORB: 002 of 24 April 2018 and Director CORB letter 1910 CORB: 001 of 14 January 2020 along with your rebuttal evidence from your previous application.  Copies of both advisory opinions were previously provided to you for comment.
 
The Board carefully considered your arguments that you were erroneously rated by the Physical Evaluation Board (PEB).  You assert that you should be placed on the disability retirement list based on changes in rating for migraines, degenerative arthritis, recurrent dislocations of scapulohumeral joint, dislocation of clavicle, and traumatic brain injury (TBI).  Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions contained in Director CORB letter 1010 CORB: 002 of 24 April 2018 and Director CORB letter 1910 CORB: 001 of 14 January 2020.  Despite your arguments to the contrary, the Board determined that the preponderance of the evidence supports the Board decision in your previous application.  The Board agreed with the advisory opinion that rating you for the additional shoulder conditions would result in pyramiding in contravention of rating regulations.  Further, the Board concluded that insufficient evidence of occupational impairment exists for TBI or any related symptoms, including migraine headaches.  The fact the VA increased your assigned disability rating for your migraine condition five months after your discharge did not convince the Board your 0% rating at the time of your discharge was erroneous.  The Board noted military disability ratings are determined at the time of discharge and it is not unusual for disability conditions to worsen over time.  While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions falls outside the scope of the Department of Defense disability system and under the purview of the VA.  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 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,