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 w/attachments 
(2) Director CORB letter 1920 CORB: 001 of 21 April 2020 
(3) President, Physical Evaluation Board letter 1850 PEB:  of 10 January 2007 
(4)  examination report of 1 March 2007 
(5) Director CORB letter 1850 CORB: 003 of 1 March 2018 
(6) Petitioner rebuttal letter of 19 May 2020 
 
1. Pursuant to the provisions of reference (a), 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.   
                                              
2.  The Board reviewed Petitioner’s allegations of error and injustice on 28 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 December 2000.  During Officer Candidate School, Petitioner injured his neck which forms the basis for his eventual discharge from the Marine Corps.  Petitioner was originally placed on limited duty due to his cervical issues in 2005.  He underwent a discectomy and fusion of his C4-C6 in May 2006 which resulted in a medical board referral to the Physical Evaluation Board (PEB) on 12 July 2006 for spondylosis, disc degenerative disease, disc herniation, and foraminal stenosis.   
See enclosure (2) 
 
     c.  The PEB found Petitioner for fit active duty on 20 September 2006 and Petitioner requested a formal hearing.  On 21 December 2006, the formal PEB found Petitioner unfit for continued naval service due to Spondylosis and assigned him a 10% rating.  The PEB also listed disc degenerative disease, disc herniation, and foraminal stenosis as related disability conditions to his Spondylosis.  The PEB hearing record indicates Petitioner was animated during the hearing, moved his arms without discomfort, and was not taking any pain medication at the time.  See enclosure (3) 
 
     d.  While awaiting his discharge from the Marine Corps, Petitioner was examined by the Department of Veterans Affairs (VA) in March 2007.  This examination diagnosed him with a Thoracolumbar Spine Strain, Right Median Nerve Neuropathy, and his PEB referred condition of Status Post Cervical Spine Anterior Fusion.  Petitioner was subsequently discharge on 30 April 2007 and assigned disability ratings of 10% for each of the VA diagnosed disability conditions.  See enclosure (4) 
 
     e.  Many years later, Petitioner filed an application with the Physical Disability Board of Review (PDRB) contesting the assigned rating of 10%.  On 17 February 2018, the PDBR affirmed the PEB assigned rating of 10% for Spondylosis (enclosure (5)).  Petitioner subsequently filed an application with this Board arguing that the PEB failed to consider additional unfitting disability conditions of Thoracolumbar Spine Strain and Right Median Nerve Neuropathy.  Relying on the VA assigned rating of 10% for each additional disability condition, Petitioner asserts that he was erroneously denied placement on the disability retirement list.  This Board originally administratively closed his initial application but accepted a second application based on a legal determination by Board legal counsel that disability conditions outside the purview of the PDBR are reviewable by the Board. 
 
     f.  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 rationale for the opinion was that neither of the additional claimed disability conditions were diagnosed while Petitioner was on active duty or created a sufficient occupational impairment to merit a finding of unfitness for continued naval service.  The opinion further points out the formal PEB record of proceedings, which document Petitioner’s lack of discomfort or need for pain medication, as additional evidence that supports no relief.  Petitioner submitted a rebuttal that correctly pointed out his diagnosis was issued in March 2007 before his discharge date.  He also argues the medical evidence shows he was severely limited in his ability to perform physical activities as a result of his disability conditions.  See enclosure (6) 
                                     
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that the preponderance of the evidence supports a finding that Petitioner was unfit for continued naval service for Thoracolumbar Spine Strain and Right Median Nerve Neuropathy at the time of his discharge from the Marine Corps.  The Board relied on the March 2007 VA examination and assigned disability ratings to conclude Petitioner, more likely than not, was also unfit for these additional disability conditions at a combined rating of 20%.  While there was no conclusive evidence of unfitness for these two additional disability condition, the Board felt it would be an injustice to deny Petitioner relief based on the medical evidence which documents his history of symptoms related to his original neck injury.  Therefore, based on the previous PEB assigned rating of 10% for Petitioner’s Spondylosis and the additional unfitting conditions rated at a combined 20% by the VA, the Board determined Petitioner should be placed on the disability retirement list with a combined 30%.  Finally, the Board concluded it was appropriate to place Petitioner on the Temporary Disability Retirement List (TDRL) to allow the PEB to consider a periodic examination of the Petitioner before making a final adjudication in his case.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by placing Petitioner on the TDRL with a combined 30% disability rating effective the date of his discharge.  Petitioner’s PEB findings will be changed to include Thoracolumbar Spine Strain, VA Code 5237, and Right Median Nerve Neuropathy, VA Code 8515, as additional unfitting disability conditions with a 10% rating for each condition.  The purpose of Petitioner’s placement on the TDRL is so he may undergo a physical examination and have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210.  All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review.                           
 
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/