DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4423-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 (2) Director CORB letter 1910 CORB: 001 of 27 April 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 change his narrative reason for separation to disability and/or place him on the disability retirement list. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 4 June 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 the 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 October 2008 and struggled with shin, knee and ankle pain. Starting in 30 April 2009, Petitioner commenced a series of medical appointments to evaluate his shin and ankle conditions. On 7 May 2009, he was diagnosed with a right ankle sprain and right anterior compartment pain. He continued to suffer Compartment Syndrome symptoms but a 4 June 2009 medical report notes his ankle condition is improving. As of 7 July 2009, Petitioner was able to run for 10 minutes without pain and hike for 20 minutes without pain. However, he experienced Compartment Syndrome symptoms if he continued to exercise beyond those times. Petitioner was subsequently diagnosed with Compartment Syndrome on 22 July 2009 and offered a surgery option. He was also counselled on that day due to his inability to participate in physical exercise required for his duties. On 27 July 2009, Petitioner declined surgery to correct his Compartment Syndrome. As a result, he was recommended for administrative separation on 30 July 2009 and discharged on 25 August 2009 for condition not a disability. c. Post-discharge, Petitioner underwent a right fasciotomy procedure on 7 October 2009. His records indicate he received treatment for his right foot on 5 May 2010 and treatment for low back pain on 11 November 2010. In 2016, the Department of Veterans Affairs (VA) rated Petitioner for Right anterior compartment/deep peroneal nerve compression with neuropathy status post surgery and assigned him a 10% disability rating. VA records document Petitioner was employed by the Federal Bureau of Investigations and an insurance company after his discharge. d. In correspondence attached at enclosure(2), the office having cognizance over Petitioner’s request to change his narrative reason to disability and/or place him on the disability retirement list determined that the evidence supports partial relief. The opinion states that after resolving reasonable doubt in favor of Petitioner, it was more likely than not that he was unfit for continued naval service due to Right Leg Compartment Syndrome with a 0% rating. The opinion was previously provided to Petitioner for comment. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief. In this regard, the Board 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 at the time of his discharge for Possible Right Leg Compartment Syndrome, VASRD DC 8799-8723, based on his documented need for surgery while on active duty and his post-discharge surgery occurring less than two months after his discharge. While the Board noted that a refusal to accept recommended treatment for a condition can be considered disqualifying for military disability benefits, the Board felt it was inconclusive whether the surgery was actually required in order for the Petitioner to continue his duties. In reviewing his medical records, the Board noted that a 28 July 2009 medical entry documented an opinion that Petitioner was safe to return to duty if he was able to adapt to the discomfort. He was also cleared for deployment at that time. However, when the Board also considered with the 30 July 2009 recommendation for administrative separation, it ultimately concluded that the preponderance of the evidence supports the recommendation from the advisory opinion. Further, the Board agreed with the advisory opinion recommendation for assignment of a 0% ratingfor two reasons. First, theBoard felt Petitioner’s occupational impairment was minimal based on his ability to run for 10 minutes without pain less than two months before his discharge. Second, the VA assigned rating of 10% in 2016 documented the relatively minor nature of his impairment due to Compartment Syndrome. Regarding Petitioner’s other claimed disability conditions, the Board again agreed with the recommendation of the advisory opinion that insufficient evidence of unfitness for those conditions exists. Despite evidence Petitioner received medical treatment for other conditions, as evidenced by the 7 July 2009 medical report, he was able to run for 10 minutes and hike for 20 minutes without pain. Additionally, the only reported symptoms preventing him from continuing his physical exercise was from his Compartment Syndrome. The Board also considered that Petitioner did not receive treatment for his back and foot until 2010 as additional evidence that the additional claimed disability conditions were, more likely than not, not unfitting for continued naval service. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by issuing a DD Form 214 with a new narrative reason for separation of Disability with severance pay vice condition not a disability. The Physical Evaluation Board will create a record documenting the Board’s findings along with a copy of the advisory opinion utilized in the case. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foreregoing 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 of Federal 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.