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 2 July 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 opinion contained in Director CORB letter 1910 CORB: 001 of 14 April 2020 along with the rebuttal evidence you submitted in response. 
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You assert that your second back surgery was not considered by the Physical Evaluation Board (PEB) prior to assigning you a 10% rating based on the Department of Veterans Affairs (VA) proposed rating for your back.  Unfortunately, the Board disagreed with your rationale for relief.   
 
You provided new evidence that documented a second back surgery in August 2011 along with a 2012 VA rating of 40% for your back condition that was later increased to 60% in 2014.  However, the Board agreed with the advisory opinion that the preponderance of the evidence does not support a rating greater than 10% for your back.  In making this finding, the Board relied on the lack of any remarkable post-surgery symptoms that would indicate your back condition worsened after the August 2011 surgery.  Your immediately post-surgery follow-up examination documented you were feeling better after the procedure and you were not treated for any aggravation of your symptoms prior to your discharge in January 2012; approximately five months after your surgery.  In the Board’s opinion, this was evidence that your condition had not worsened beyond the 10% rating assigned to you by the PEB.  The fact your back condition worsened in the months after your discharge, did not convince the Board that the same symptoms existed at the time of your discharge.  Similarly, the Board was not persuaded by the VA assigned ratings of 40%, and later 60%, since those ratings were assigned well after your discharge from the Navy.  Absent evidence that the VA made an error in assigning you a proposed 10% rating relied upon by the PEB, the Board concluded that insufficient evidence of error or injustice to warrant a change to your 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,    
7/6/2020