From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. § 1552 Encl: (1) DD Form 149 (2) CORB letter 1910 CORB: 001 of 21 Apr 20 (3) Physical Evaluation Board findings of 9 Mar 12 (4) Department of Veterans Affairs reconsideration letter of 26 Apr 12 (5) Range of motion measurements of 10 Jul 12 (6) Department of Veterans Affairs medical report of 10 Oct 14 (7) Petitioner response to advisory opinion 1. Pursuant to the reference, Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to place him on the disability retirement list. Petitioner 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, reviewed Petitioner’s allegations of error and injustice on 21 May 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, 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 Marine Corps in March 2003. He deployed to I in 2004 where he injured his back during an Improvised Explosive Device explosion. Eventually, he was placed on limited duty in 2009 but returned to full duty to deploy to . However, he was medically evacuated from in February 2011 due to back pain. A medical board referred Petitioner to the Physical Evaluation Board (PEB) on 14 September 2011 with diagnoses of lumbar disc herniation L4-L5, L5-S1 and bilateral lumbar radiculopathy. See enclosure (2). c. As part of the Integrated Disability Evaluation System process, Petitioner was examined by the Department of Veterans Affairs (VA) for the purpose of issuing proposed disability ratings. On 5 October 2011, his forward flexion range of motion was documented at 45 degrees. However, he subsequently underwent back surgery on 21 December 2011 while awaiting his PEB review. See enclosure (2). d. The PEB found Petitioner unfit for continued naval service on 20 January 2012 due to Lumbar Disc Herniation. His bilateral lumbar radiculopathy was determined to be a related category two diagnosis. Petitioner’s forward flexion range of motion was again measured in February 2012 and documented as 25 degrees. However, on 5 March 2012, the VA proposed a 20% rating for Petitioner’s back condition based on the 45 degree forward flexion rating documented in the October 2011 VA examination. The PEB adopted the proposed VA rating of 20% and recommended Petitioner be discharged for his disability condition with severance pay. The PEB also determined Petitioner’s disability condition did not result from a combat-related injury. See enclosure (3). e. Petitioner submitted a one-time reconsideration request of the VA’s proposed rating of his back condition arguing that his forward flexion range of motion was most recently measured at 25 degrees qualifying him for a 40% disability rating. On 26 April 2012, the VA affirmed their proposed rating of 20% for Petitioner’s back condition. The rationale provided by the VA stated Petitioner was still in his six-month convalescent window from his December 2011 back surgery when his February 2012 range of motion test was measured at 25 degrees. In their opinion, his range of motion would likely improve once he fully recovered from his surgery. See enclosure (4). Petitioner was subsequently discharged on 30 July 2012 pursuant to his PEB findings. However, 20 days prior to his discharge, Petitioner underwent another forward flexion range of motion test that measured at 20 degrees. See enclosure (5). f. Post-discharge, Petitioner continued to receive treatment for his back pain symptoms. In November 2012, Petitioner underwent a second back surgery. See enclosure (6). The VA later measures his forward flexion range of motion at 20 degrees in October 2014 and, after a higher level review in 2018, changes Petitioner’s disability rating for his back condition to 40% effective the day after his discharge. g. On 8 December 2016, the Board denied Petitioner’s request to change his bilateral lumbar radiculopathy to a separately unfitting condition and place him on the disability retirement list. The Board considered a second application from Petitioner to place him on the disability retirement list based on an assertion he was improperly rated by the VA and PEB based on the 2018 VA decision to retroactively increase his disability rating for his back condition to the day after his discharge from the Marine Corps. h. In enclosure (2), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that the evidence does not support relief. The advisory opinion raised the same argument used by the VA that Petitioner’s forward flexion range of motion for his back likely improved prior to his discharge as he recovered. It rationalized that Petitioner was only 6 degrees removed from qualifying for the 20% disability rating approximately three months after his surgery and, more likely than not, improved in the remaining months prior to his discharge. Petitioner provided a rebuttal statement arguing that his forward flexion was measured at 20 degrees after the six month convalescent period and prior to his discharge. See enclosure (7). CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action. The Board determined the preponderance of the evidence supports placing Petitioner on the Permanent Disability Retirement List (PDRL) for his Lumbar Disc Herniation effective the date of his discharge from the Marine Corps. The Board relied on the 10 July 2012 range of motion measurements taken by Petitioner’s physical therapy provider that showed a 20 degrees range of motion for his back. When this evidence was considered in conjunction with his 25 August 2012 range of motion measurement of 10 degrees and his need for back surgery in November 2012, the Board felt the that evidence supports increasing his PEB disability rating to 40% consistent with the VA rating assigned effective the day after his discharge. In making their findings, the Board noted that 38 C.F.R. § 4.71a directs a disability rating of 40% under VASRD DC 5243 if a member has a thoracolumbar spine forward flexion of 30 degrees or less. The Board considered the advisory opinion but concluded the opinion failed to consider the 10 July 2012 range of motion measurement. The Board also considered whether Petitioner’s disability resulted from a combat-related injury as defined by Title 26, United States Code, Section 104(b)(3). Based on medical evidence that his back injuries originated from his exposure to an IED blast in , the Board concluded his disability condition resulted from a combat-related injury. RECOMMENDATION: That Petitioner’s naval record be corrected, where appropriate, to place Petitioner on the PDRL for Lumbar Disc Herniation, VASRD DC 5243, with a 40% disability rating the date of his discharge from the Marine Corps. Petitioner’s disability condition was the result of a combat-related injury as defined by Title 26, United States Code, Section 104(b)(3). Petitioner shall be issued a new DD Form 214 consistent with the recommended change to his record. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that 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. The foregoing action of the Board is submitted for your review and action. 6/22/2020 Reviewed and Approved/Disapproved 7/1/2020