DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6574-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 Docket No: 6574-19 Ref: Signature Date 1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to reinstate him to the disability retirement list due to the continued issues he is suffering from his unfitting condition. Petitioner previously petitioned the Board for Correction of Naval Records (Board) and was advised that his application had been partially approved. His 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, consisting of reviewed Petitioner's allegations of error and injustice on 17 October 2019, 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 service with the Navy in July 2015. Within months, he was seen for atypical chest pain and palpitations along with a suicidal ideation that was diagnosed as an adjustment disorder. Petitioner was recommended for administrative separation due to his adjustment disorder but successfully argued for retention with the belief the incident was isolated and he was fully fit to perform his duties. He was returned to full duty. c. On 17 March 2016, a medical board referred Petitioner to the Physical Evaluation Board (PEB) for Ventricular Tachycardia. Despite the medical determination that his condition was resolved, he was referred based on probability of reoccurrence of his condition. A medical board addendum from 30 March 2016 added other specified anxiety disorder and major depressive disorder, single episode to his PEB referral. d. Petitioner was found unfit for continued naval service by the PEB on 2 May 2016 for his Ventricular Tachycardia condition. His mental health conditions were determined not to be unfitting conditions. Based on the Department of Veterans Affairs (VA) proposed rating of 10% for his unfitting condition, the PEB issued him a 10% rating on 1 September 2016. Petitioner accepted the PEB findings and was discharged from the Navy on 17 October 2016 with severance pay. e. On 28 June 2017, the VA increased Petitioner’s rating for his Ventricular Tachycardia condition to 60% based on their determination he was improperly rated. At this time, Petitioner was also rated at 70% for major depressive disorder. Subsequently, the VA decreased Petitioner’s rating for Ventricular Tachycardia to 10% effective 8 May 2018 based on significant improvement in his condition. Petitioner has also been rated by the VA for tinnitus, carpal tunnel right extremity, carpal tunnel left extremity, and right shoulder tendonitis. f. Senior Medical Advisor CORB and Director CORB provided advisory opinions recommending partial relief in Petitioner’s first application to this Board. They concluded that Petitioner’s Ventricular Tachycardia condition was improperly rated by the PEB based on an erroneous VA rating. Consistent with the VA’s decision to increase Petitioner’s disability rating for his Ventricular Tachycardia condition to 60%, they recommend his PEB issued rating be amended to reflect 60% and his placement on the Temporary Disability Retirement List (TDRL). However, they also recommend Petitioner be removed from the TDRL effective 8 May 2018 with a 10% rating for his Ventricular Tachycardia condition. A change that is consistent with the date the VA reduced Petitioner’s rating to 10% for his Ventricular Tachycardia. Based on the advisory opinions, the Board ordered Petitioner’s record be changed to reflect his placement on the TDRL on 17 October 2016 with a 60% rating but also recommended his removal from the TDRL with a 10% rating effective 8 May 2018. g. Petitioner provided additional evidence that he continues to undergo treatment for his unfitting condition. Based on this new evidence, the Board concluded an injustice exists in Petitioner’s record that requires his reinstatement to the TDRL in order to allow the PEB to conduct a periodic TDRL examination in order to make a final adjudication of his case with the benefit of a full medical evaluation. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following partial corrective action. The Board concluded there was sufficient evidence to find that Petitioner’s unfitting condition was not yet stable in 2018 to release him from the TDRL. Based on this finding, the Board felt the interests of justice direct that Petitioner be placed back on the TDRL to allow Petitioner to be medically examined in a periodic TDRL examination so the PEB to make a final adjudication in his case. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: Petitioner was not released from the TDRL on 8 May 2016 and not discharged from the Navy. The sole purpose of his reinstatement to 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. A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 4. 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 Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is certified that a 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. 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.