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

Docket No. 6069-19 
Ref: Signature Date 

Dear , 

This is in reference to your application 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 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 9 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.  In addition, the Board considered the advisory opinion contained in Director CORB letter 1770 CORB of 1 May 2020 along with your response to the opinion. 

A review of your record shows that you entered active duty with the Navy in January 2000.  On 15 June 2016, you participated in a replenishment at sea (RAS) where you came into contact with a bale of rags that allegedly struck you in the shoulder.  You application states that you subsequently felt back pain while preparing to exercise after completion of the RAS.  The next day, you were seen by a Corpsman who prescribed you anti-inflammatory medication but documented the cause of your back pain as unknown.  On 18 June 2016, you requested to medical after reporting a“tweak” to your back.  There is no documentation in your medical record from that day which discussed the cause of you injury. Two days later, you were medically evacuated from your ship and underwent surgery for a herniated disc and spinal swelling. Medical records from the same Corpsman state that the initial cause of the injury was unknown but you felt pain after getting out of a chair.  You eventually developed paraplegia and were placed on the disability retirement list on 28 May 2018. 

However, in the meantime, you filed a Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim with the Navy after your surgery.  Your claim was initially denied on 18 October 2016.  A reconsideration was filed with statements from your Neurosurgeon, Orthopedic surgeon, and Senior Medical Officer stating that they believed the cause of your back injury and paraplegia was due to the RAS incident involving a bale of rags.  Despite this evidence, your reconsideration request was denied by Navy Personnel Command on 1 August 2017.  You subsequent filed an appeal to the TSGLI Appeals Board with witness evidence attesting to the occurrence of the RAS incident.  Again, you were denied relief on 23 March 2018 based on lack of evidence that a traumatic event cause your injury.  You were finally denied reconsideration on 15 June 2018 before applying to this Board. 

The Board carefully considered your arguments that you qualify for payment of $100,000 under TSGLI for your hospitalization, paraplegia, and loss of at least two activities of daily living for 120 days.  You argue that Navy Personnel Command and TSGLI Appeals Board erroneously relied on notes prepared by an inexperienced Corpsman to deny you TSGLI payment and that the medical evidence supports relief.  Unfortunately, the Board found insufficient evidence to overturn the TSGLI decisions in your case. 

In order to qualify for TSGLI payment, the preponderance of the evidence must show that a service member suffered a scheduled loss that is the direct result of a traumatic event.  A traumatic evidence is defined in the TSGLI procedural guide as “the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body.” In analyzing your case, there was no question that you suffered a schedule loss.  However, the Board was unable to discern, through a preponderance of the evidence, that your loss was due to a traumatic event.  In your application, you provide several medical opinions and witness evidence in support of your argument that your injury was caused by the 15 June 2016 RAS incident involving a bale of rags.  While the Board agrees that this medical evidence is probative on determining whether the incident occurred and could have caused your back injury, the Board did not agree that it deserved more weight than the medical notes from the Corpsman who treated you onboard the ship.  In the Board’s opinion, medical documentation created contemporaneously with your initial treatments between 16-20 June 2016 is extremely probative in determining whether the RAS incident caused your back injury since patients, as a matter of normal practice, are asked by their medical providers to describe possible causes to symptoms.  Since no mention of the RAS incident was mentioned by the Corpsman, in the Board’s opinion, it is reasonable to find that you were unable to determine a possible cause during your course of treatment despite the alleged traumatic incident occurring just one day prior to your first treatment session. The Board also took into consideration that you never mentioned the RAS incident during your entire course of treatment onboard the ship.  In the Board’s opinion, your argument that the Corpsman did not specifically inquire about the cause of your symptoms was not persuasive since the Corpsman documented that you reported tweaking your back. As a result, the Board determined that the lack of any reference to the RAS incident in your medical treatment records created within days of the alleged incident was more reliable than medical opinions provided years after the incident.  Additionally, the Board considered evidence that your back condition did not significantly worsen to the point of requiring a medical evacuation and surgery until approximately five days after the RAS incident.  While this is not conclusive evidence that another cause for your injury exists, it was additional evidence that brings into question your claim.  Based on all of these factors, the Board concluded that the preponderance of the evidence does not support a finding that the RAS incident was the direct cause of your injury and scheduled loss. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

While the Board was sympathetic to your case, they felt additional evidence was required to grant relief in your case. For example, evidence that substantiates your claim that the Corpsman failed to properly perform his duties by neglecting to inquire about or document the cause of your injury. 

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 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,