Docket No. 10707-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MEMBER , USMC Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 27 May 2020 (3) Director CORB letter 1910 CORB: 001 of 9 June 2020 (4) Petitioner’s rebuttal response of 14 August 2020 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to place him on the disability retirement list. 2. The Board reviewed Petitioner’s allegations of error and injustice on 27 August 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner entered active duty with the Marine Corps in June 1994. He served without incident until April 1996 when he injured his lower back and knees in a line of duty motor vehicle accident. After a period of treatment while on limited duty, he was eventually referred to the Physical Evaluation Board (PEB) for Mechanical Low Back Pain and Bilateral Retropatellar Pain Syndrome in February 1997. The medical board report documented that Petitioner suffered back pain upon palpitation but did not state he suffered pain on motion. Additionally, the report stated Petitioner suffered from tenderness upon compression of his knees but otherwise suffered no issues with range of motion, instability, or other symptoms. However, the medical board report listed both his knees and back as the basis for his duty limitations and referral to the PEB. On 20 May 1997, the PEB found Petitioner unfit for his Mechanical Low Back Pain but concluded his bilateral knee condition was not separately unfitting. Petitioner was assigned a 0% rating for his unfitting back condition and discharged with severance pay on 31 July 1997. Petitioner subsequently was examined by the Department of Veterans Affairs (VA) in June 1998. The VA report documented that Petitioner’s pain symptoms and assigned ratings of 10% for his back condition and each of his knees. c. In enclosures (2) and (3), the office with cognizance over Petitioner’s request to be placed on the disability retirement list stated that the evidence does not support relief. The opinions argue that the language in the medical board report of February 1997 supports the PEB findings in the case since Petitioner’s pain was determined to be subjective pain symptoms vice pain on motion. Based on this determination and the lack of any other objective findings related to his conditions, the opinions conclude he was properly rated by the PEB irrespective of the VA ratings assigned upon his discharge from the Marine Corps. Petitioner provided a rebuttal argument in enclosure (4) that stated the medical board report was flawed and should not be used as the basis for denying disability benefits when his VA examination and ratings supports relief. d. In regard to Petitioner’s request for a personal appearance, the Board determined that a personal appearance was not necessary and considered the case based on the evidence of the record. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action. The Board determined that the evidence supports a finding that Petitioner was unfit for continued naval service due to his back and bilateral knee conditions. Relying on the February 1997 medical board report that referred Petitioner to the PEB, the Board concluded it was documented that both of his PEB referred conditions led to an occupational impairment that prevented him from performing the duties of his office, grade, rank or rating. The Board also noted that Petitioner suffered from pain symptoms that supported his combined 30% rating from the VA less than 12 months after his discharge. Based on these two factors, the Board concluded the preponderance of the evidence favors finding Petitioner unfit for both PEB referred conditions. Since Petitioner was assigned a VA rating of 30% upon his discharge, the Board also concluded adopting that combined rating was consistent with current disability policy and appropriate in this case. While the Board determined the rationale contained in the advisory opinions to be reasonable, ultimately, they concluded it was in the interests of justice to grant relief based, in part, on the ambiguity of the medical evidence. RECOMMENDATION That Petitioner’s naval record be corrected to place him on the Permanent Disability Retirement List for Mechanical Low Back Pain, VASRD 5295 at 10%, Left knee Patellofemoral Pain Syndrome, VASRD 5257 at 10%, and Right knee Patellofemoral Pain Syndrome, VASRD 5257 at 10%, for a combined 30% disability rating effective 1 August 1997. Petitioner will be issued a new DD Form 214 consistent with these changes. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. The foregoing action of the Board is submitted for your review and action. 9/8/2020 Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Board Recommendation (Grant Full Relief) 9/27/2020