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


Docket No: 7139-19 
Ref: Signature Date 


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 the entire record, 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 for Correction of Naval Records, sitting in executive session, considered your application on 25 November 2019. 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. 

You began your honorable service in the Marine Corps in November 1998; your service included time in the Marine Corps Reserve with numerous periods of extended active duty. During an operational deployment in July 2010, you were riding in an armored vehicle that was hit by an IED.  You suffered loss of consciousness initially and intermittently over the next 24 hour period and were subsequently medically evacuated out of theater for higher echelon care.  You were treated for a spinal fracture of the T-12 vertebrae, a concussion with loss of consciousness, and a contusion to your left knee.  Your medical records indicate that you had persistent back pain resultant from the IED incident.  In February 2012, you were evaluated by a Physical Evaluation Board (PEB) and found unit for continued active service due to low back pain rating at 10%.  You disagreed with the finding and submitted a reconsideration request.  In August 2012, the PEB revaluated your case and added post traumatic headaches due to a Traumatic Brain Injury (TBI) as an additionally unfitting condition of Post Traumatic Stress Disorder (PTSD), rated at 30%.  You were placed on the Temporary Disability Retired List (TDRL) where you remained until your case was re-evaluated in 2016.  In the interim period, Veterans Affairs (VA) issued you a 100% combined disability rating, and awarded you service-connected disability compensation. 

You were reevaluated by the PEB on 26 February 2016; you were found stable and your disability rating remained unchanged.  In the Election of Opinions, you indicated that you did not accept the findings of the PEB.  Your case was again evaluated by the PEB on 27 April 2016, and it was determined that the February 2016 adjudication was correct.  The 27 April 2016 PEB made no change in the rating percentage. You accepted the determination and did not request a formal hearing to present additional evidence.  On 27 April 2016, you were transferred to the Permanent Disability Retired List (PDRL) with a 40% disability rating.  

You previously applied to the Board in 2016, requesting that your disability percentage rating be increased from 40% to as much as 100%.  You asserted that since your combined disability rating was increased by the VA to 100%, that your permanent disability retirement rating should also be increased.  On 3 April 2017, the Council of Review Boards (CORB) issued an Advisory Opinion (AO) in which it determined that the evidence you submitted did not support your request to the Board for an increase in your disability percentage rating of 40%. The AO noted that there was no objective evidence provided supporting the addition of a new condition nor was there objective evidence provided to show that these conditions were unfitting in nature at the time you were placed on the TDRL.  The AO noted the absence of a neuropsychological testing which had been ordered as part of the January 2016 TDRL evaluation.  The AO stated that should the results of this test or other relevant documentation surface, resubmission for consideration would be appropriate. You were provided a copy of the AO during the processing of your 2016 application for correction, and given an opportunity to respond to its determination. You submitted a copy of the AO in conjunction with your current petition to the Board. 

In your current application you contend that you did not accept the findings of the 2016 PEB.  You state that due to an egregious error by your representative at the time, it was wrongfully indicated that you accepted the findings and did not wish to pursue a formal hearing. You state that it was your intention to appear before the PEB with new evidence.  You assert that you directed your representative to request a formal board hearing and not to accept the findings. You claim that your representative, who has since been terminated, made an error in the Election of Options form which caused your claim to be denied. You submit an updated “Election of Options” dated 26 February 2016, signed byyou on 28 May 2019, in which you state that you do not accept the findings of the PEB and request a formal PEB at the. You also provide a letter from a retired Marine and Founding Director for the   .  The letter states you contacted    in 2013, seeking assistance with your disability determination appeal.  The letter states that a representative partnering with the organization checked the wrong box during your PEB proceedings and erroneously indicated that you accepted the findings of the PEB, which resulted in a denial of your appeal. 

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that in 2016 you wished to refute the informal findings of the PEB and that due to an administrative error by your representative, you were denied that opportunity.  The Board reviewed the letter of support that corroborates your assertion of a representative error during the 2016 PEB, and also noted the medical documentation you provide in support of your request.  The Board found that during the PEB process you were provided the opportunity to request a formal hearing in 2016.  Even in consideration of your claim that your representative caused you to be deprived of a formal hearing, the Board found that the absence of a formal hearing was not the basis for the denial of an increase in your 40% disability rating.  The Board noted that your February 2016 PEB found you stable.  You disagreed with the findings, and the case was re-evaluated in April 2016; the February 2016 determination was found to be correct and no changes in the rating were made.  The Board concluded that the findings of the 2016 PEB were made in consideration of your disagreement with the 40% determination, and the decision to deny your request for an increase in rating was made without error or injustice.  

The Board considered the determination of the AO that was issued when you petitioned the Board in 2016, and took into account your current VA ratings.  The Board found that you did not provide sufficient medical evidence to establish that a formal hearing would have resulted in an increase to your 40% disability rating as related to your transfer to the PDRL.  Furthermore, the Board found that even if your representative made a clerical error, that error was not attributable to the Department of the Navy.  Even assuming the error occurred, the Board concluded that you received a fair and equitable review by the PEB during the 2016 re-evaluation.  Additionally, the Board found that you did not provide sufficient evidence to establish that a formal hearing would have resulted in a higher disability rating. The Board noted that the VA’s determination of a 100% service-connected compensable rating is not probative on the PEB decision since eligibility for compensation and pension disability ratings by the VA are unrelated to a fitness for duty determination.  The Board found that you were afforded a proper review during the PEB process with the 2012 and 2016 determinations, and that your 40% disability rating as related to your transfer to the PDRL was issued without error or injustice. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

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.