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 relevant portions of your naval record and your application, 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, sitting in executive session, considered your application on 23 July 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.  In addition, the Board considered the advisory opinions contained in Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 13 May 2020 and Director CORB letter 1910 CORB: 001 of 17 May 2020; copies of which were previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Marine Corps in March 2003.  During a combat deployment, on 20 November 2004, you were exposed to an Improvised Explosive Device (IED) explosion that knocked you unconscious.  After treatment, you were release back to duty on 28 November 2004 and completed your combat deployment.  You underwent two knee surgeries in 2006 that resulted in your referral to the Physical Evaluation Board (PEB) for Patellar Tendinitis.  The PEB found you unfit for continued naval service on 31 August 2006 for bilateral Patellar Tendopathy with Fat Pad Syndrome and assigned you a 10% rating.  After you accepted the PEB ratings, you were discharged from the Marine Corps with severance pay pursuant to your PEB findings.  However, you later applied to the Physical Disability Board of Review (PDBR) to contest your PEB findings.  After reviewing your PEB case and assigned Department of Veterans Affairs (VA) disabilities, the PDBR recommended increasing your combined disability rating to 20% after determining that your bilateral knee condition should have each received a 10% rating.  However, the PDBR also determined there was insufficient evidence that your other VA rated disability conditions were separately unfitting.  This recommendation was approved by Assistant General Counsel (Manpower and Reserve Affairs) on 25 May 2012.  You were notified of the Assistant General Counsel (Manpower and Reserve Affairs) on 1 June 2012 and informed this was a final Department of Navy action.  Subsequently, the VA rated you a combined 100% on 30 April 2019.  
 
The Board carefully considered your arguments that you should be placed on the disability retirement list.  You assert the PEB findings were erroneous based on your current VA rating and argue that you suffered a perforated right eardrum and loss of hearing that was unfitting.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings the Board substantially concurred with the advisory opinions in your case.  Specifically, the Board concluded that the preponderance of the evidence does not support a finding that you were unable to perform the duties of your office, grade, rank or rating due to your loss of hearing or perforated right eardrum.     
 
First, the Board declined to consider your claims of error based on disability conditions already reviewed by the PDBR and approved by Assistant General Counsel (Manpower and Reserve Affairs).  As you were previously informed on 1 June 2012, the decision of the Assistant General Counsel (Manpower and Reserve Affairs) to approved the PDBR recommendation is a final Department of the Navy action.  Consequently, any PEB findings previously reviewed by the PDBR are not reviewable by this Board. 
 
Second, the Board did review two disability conditions that did not appear to be considered by the PDBR as part of their review.  The PDBR report specifically mentions your bilateral knee degenerative joint disease, Post-Traumatic Stress Disorder, Migraine Headaches, and Bilateral Tinnitis in addition to your unfitting Bilateral Patellar Tendopathy.  Therefore, the Board considered your claim of a ruptured right eardrum and bilateral hearing loss.  In reviewing the medical evidence, the Board found insufficient evidence to support a finding that either of those conditions were unfitting for continued naval service.  Despite a medical record dated 9 June 2006 that historically notes that you suffered a ruptured eardrum as a result of your IED exposure in 2004, the Board found medical records from 2004 and 2006 that show you right eardrum was intact upon examination.  Additionally, the Board considered hearing tests that showed you suffered from minimal hearing loss during your active duty service.  Finally, the Board took into consideration that you were assigned 0% ratings for your perforated right eardrum and bilateral hearing loss by the VA.  In the Board’s opinion, this evidence substantiated a finding that both conditions caused minimal impairment in the performance of your duties while you were on active duty.  As a result, the Board agreed with the advisory opinion that these conditions would not have resulted in a finding of unfitness by the PEB had they been referred by a medical board.  While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall 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.   
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of 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.

Sincerely,
7/27/2020