Docket No. 11116-19
Ref: Signature Date


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 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.  In addition, the Board considered the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 31 May 2020 and Director CORB letter 1910 CORB: 001 of 10 June 2020; copies of which were previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Navy in July 2000.  During your first few years, you deployed onboard a naval vessel in support of Operations Enduring Freedom and Iraqi Freedom in 2001 and 2003.  You underwent right shoulder and left foot surgery in 2006 before you were placed on limited duty in 2013 for a rotator cuff tear and shoulder arthritis.  In 2014, a medical board referred you to the Physical Evaluation Board (PEB) for Right Shoulder Sprain, Carpal Tunnel Syndrome, and Congenital Valgus Deformity.  During this time,   An April 2014, non-medical assessment documented that you were unable to perform your duties due to your right shoulder condition.  As a result, the PEB found you unfit for continued naval service due to your right shoulder condition.  Your carpal tunnel condition was determined not to be separately unfitting.  However, a formal PEB concluded you were also unfit for your carpal tunnel condition on 3 September 2014 based on a non-medical assessment addendum that concluded you were also unable to perform your duties due to carpal tunnel symptoms.  Based on proposed Department of Veterans Affairs (VA) ratings, you were assigned disability ratings of 10% and 20% for your Carpal Tunnel and Right Shoulder conditions, respectively.  In assigning your proposed ratings, the VA assigned “Gulf War” incurred to your disability conditions based on your sea deployments in support of the aforementioned combat operations.  After you accepted the PEB findings, you were transferred to the Permanent Disability Retirement List on 27 November 2014.  In 2018, the Combat Related Special Compensation (CRSC) Board concluded your Tinnitus was combat-related but determined none of your other disability conditions met the criteria for CRSC. 
 
The Board carefully considered your arguments that the PEB failed to consider your other VA rated disability conditions in making their findings.  Additionally, you argue that the PEB erroneously concluded your unfitting conditions were not the result of a combat-related injury.  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 found insufficient evidence to conclude your VA rated disability conditions, other than your PEB determined unfitting conditions, were also unfitting for continued naval service. 
 
In order to find a service member unfit for continued naval service, the member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition.  Since fitness is directly tied to a member’s ability to perform military duties, the non-medical assessment by a member’s command is highly probative evidence considered by the PEB in making their adjudication.  In your case, the April 2014 non-medical assessment and Aug 2014 non-medical assessment addendum list only your right shoulder and right wrist symptoms as the basis for your inability to perform your military duties.  Based on this evidence, the Board concluded that the preponderance of the evidence only supports a finding of unfitness for your right shoulder and wrist conditions.  The absence of evidence that documents specific occupational impairments due to your other VA rated disability conditions also led the Board to their conclusion.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
Regarding your request to change your right shoulder and carpal tunnel conditions to reflect a combat-related determination by the PEB, the Board concluded you have failed to exhaust your administrative remedies.  A determination by the PEB that a disability did not result from a combat-related injury may be appealed to the Navy Judge Advocate General (JAG).  The appeal shall be by letter addressed to the Judge Advocate General of the Navy (Code 131), Washington Navy Yard, 1322 Patterson Ave SE, Suite 3000, Washington, DC 20374-5066 and shall set forth the reasons the member disagrees with the determination of the PEB.  Since you are required to exhaust your administrative remedies prior to applying to this Board, the issue of whether your unfitting conditions were improperly determined not to be combat-related injuries by the PEB was not adjudicated by the Board.  Should your appeal to JAG be denied, you may reapply to this Board with evidence of your denial.  The Board also determined the issue of whether your other VA rated disability conditions should have been assigned PEB combat-related injury status was moot based on their conclusion that those conditions were not separately unfitting.   
 
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, 
 

8/24/2020



Deputy Director