DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) Title 10 U.S.C. 1552 Encl:(1) DD Form 149 w/attachments (2) Director CORB ltr 1910 CORB: 002 of 14 Jan 20 1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to place her on the disability retirement list. Petitioner previously petitioned the Board for Correction of Naval Records (Board) and was advised that her application had been disapproved. Her 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). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 20 February 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, relevant portions of 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 Navy in October 1994. She suffered a lower back compression fracture in a motor vehicle accident on 6 June 1997. After receiving treatment that included physical therapy, Petitioner was eventually referred to a medical board on 6 February 1998. The medical board diagnosed her with a L1 Compression Fracture and Intrauterine Pregnancy resulting in her referral to the Physical Evaluation Board (PEB). On 20 March 1998, the PEB found Petitioner unfit for her low back condition and assigned her a 10% disability rating. Petitioner accepted the PEB findings and was discharged on 4 June 1998 pursuant to the PEB findings. This Board denied Petitioner’s first application to be placed on the disability retirement list on 13 September 2018 based on lack of evidence her PEB findings were erroneous. c. In correspondence attached at enclosure (2), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that insufficient evidence exists to support Petitioner’s request. The opinion stated Petitioner’s medical record did not support findings that she was unfit for continued naval service for any disability condition but her lower back condition. Her medical record documented her cervical spine as normal based on X-rays taken on 6 June 1997 and no complaints of bilateral knee pain exist in her in her records. Absent evidence that shows she suffered an occupational impairment as a result of both conditions, the opinion states that Petitioner’s record does not support her claim that she was unfit due to a cervical or bilateral knee condition. However, the Advisory Opinion opined that the preponderance of the evidence supports partial relief in the form of increasing Petitioner’s rating by 10% based on a demonstrated deformity of her first lumbar vertebra that was documented in her medical board report. d. Petitioner provided a rebuttal statement arguing that she suffered from a number of disability conditions that were rated by the Department of Veterans Affairs. Petitioner added that she continues to suffer from cognitive related symptoms related to traumatic brain injury and her mental health. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial relief. In this regard, the Board substantially concurred with the Advisory Opinion at enclosure (2). Specifically, the Board determined that the preponderance of the evidence supports a finding that Petitioner was unfit for continued naval service due to her demonstrable deformity of her L1. This was documented by Petitioner’s 6 February 1998 medical board report that documented her lumbar spine films showed a 25%-30% wedged deformity in her L1 vertebra. However, the Board concluded the preponderance of the evidence does not support findings of unfitness for any other disability conditions including her cervical, knees, TBI, or mental health conditions. The Board agreed with the advisory opinion finding that Petitioner’s medical record did not support her claims of cervical or bilateral knee unfitness. As mentioned in the opinion, Petitioner’s 6 June 1997 cervical spine X-rays were normal and her record makes no mention of bilateral knee pain. Similarly, despite evidence that Petitioner suffered from head trauma during her motor vehicle accident, her post accident treatment were primarily related to her low back pain and not TBI or mental health symptoms. Additionally, the Board found no documentation of occupational impairment based on symptoms related to TBI or mental health while Petitioner was on active duty. Finally, the Board noted that Petitioner accepted the findings of the PEB before her discharge in 1998. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by adding Demonstrable Deformity of L1 to Petitioner’s PEB record as an additional unfitting condition with an assigned rating of 10%. Petitioner’s combined PEB rating will be changed to 20%. 4. It is certified that a 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. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code ofFederal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.