Docket No.  10859-19
Ref: Signature Date

Dear  ,  
 
This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures 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 relevant portions of your naval record and your application, 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, sitting in executive session, considered your application on    20 August 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 Psychiatric Advisor CORB letter 1910 CORB: 002 of 8 June 2020 and Director CORB letter 1910 CORB: 001 of 11 June 2020 along with your response to the opinions. 
 
The Board carefully considered your arguments that the medical board and Board decisions in your case relied on erroneous medical records in determining that your left shoulder condition was a preexisting disability condition.  Unfortunately, the Board disagreed with your rationale for placement on the disability retirement list or referral to the disability evaluation system.  In making their findings, the Board substantially concurred with the advisory opinions in your case.  Specifically, the Board determined the preponderance of the evidence supports the medical board determination that you entered the Navy with a preexisting left shoulder condition that was not aggravated by your active duty service. 
 
First, the Board determined that the record supports a finding that you suffered at least two left shoulder separations prior to entering the Navy.  As explained in the advisory opinion, your active duty medical record documents at least two prior left shoulder separations prior to entering the Navy.  This is documented multiple times in your record and, regardless of whether the name of the hospital where you received treatment for your preservice injury was properly recorded, the Board found no basis to determine you were an unreliable historian of your medical history or that the different Navy medical providers entered erroneous medical information in your record.  In the Board’s opinion, the preponderance of the evidence establishes that your left shoulder condition was recurrent prior to your entry into the Navy and continued after your enlistment.  Based on this finding, the Board concluded that your left shoulder condition preexisted your entry into the Navy.  Second, the Board determined that your left shoulder condition was not aggravated by your active duty service.  SECNAVINST 1850.4A states that a preexisting disability condition will be considered to be aggravated when the condition undergoes an increase in severity during the service, unless the increase is clearly shown to have been due to the natural progression of the condition.  A finding of natural progress must be established based on medical principles to overcome the presumption of service aggravation.  As explained in the advisory opinion, medical studies involving shoulder subluxations have established that the natural progression of the condition is for patients to experience recurrent subluxations after an initial instability event.  The Board concluded this medical principle to be true in your case as you similarly experienced recurrent subluxations of your left shoulder after your initial subluxation event in 1983.  Based on the medical principles cited in the advisory opinion and your medical record, the Board found that your left shoulder condition was not aggravated beyond its natural progression when you continued to suffer recurrent subluxations of your left shoulder.  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 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, 
 

8/24/2020



Deputy Diretor