DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 2578-19 
Ref: Signature Date 

Dear ,
 
This is in reference to your application of 26 February 2019 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 that 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 21 May 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 opinion contained in Director CORB letter 1910 CORB: 001 of 10 April 2020; a copy of which was previously provided to you for comment. 

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.
 
A review of your record shows that you entered active duty with the Navy in December 2011.  You were referred to the Physical Evaluation Board (PEB) on 13 December 2017 for dizziness and hearing loss.  The Department of Veterans Affairs (VA) proposed a disability rating of 30% for conductive hearing loss with aural vertigo under VASRD DC 6205 on 2 February 2018.  The PEB found you unfit for continued naval service on 7 March 2018 and assigned you a 30% rating under VASRD DC 6205 as proposed by the VA.  Your hearing loss was rated at 0% as also proposed by the VA.  Based on your request for reconsideration, the VA determined it made a clear and unmistakable error in rating your left ear vertigo condition and assigned you a new rating of 10% under VASRD DC 6204 for peripheral vestibular disorder.  The reconsideration decision determined you were erroneously rated under VASRD DC 6205 since you were not diagnosed with Meniere’s disease.  You were discharged from the Navy on 29 July 2018 pursuant to your PEB findings.  Post-discharge, the VA rated you for Meniere’s disease at 60% effective the date after your discharge. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list based on your post-discharge VA rating for Meniere’s disease.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion contained in Director CORB letter 1910 CORB: 001 of 10 April 2020.  Specifically, the Board concluded the preponderance of the evidence does not support a finding that the PEB erroneously rated your unfitting condition at 10%.  This finding was based on the lack of a Meniere’s disease diagnosis prior to your discharge and the VA’s determination on 16 April 2018 that you were improperly rated under VASRD DC 6205 based on the lack of a Meniere’s disease diagnosis.  While the Board understands the VA subsequently rated you for Meniere’s disease, the Board agreed with the advisory opinion that no explanation 
was provided by the VA for its rating decision after it declined to rate you for the disease while on active duty.  Absent evidence that shows the VA made a clear and unmistakable error in their reconsidered proposed rating for your unfitting condition, the Board felt the preponderance of the evidence supports the VA’s reconsideration decision on which the PEB findings were based.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your 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 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 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,