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

Docket No. 7206-19
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 opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 4 May 2020 and Director CORB letter 1910 CORB: 001 of 11 May 2020: copies of which were previously provided to you for comment. 

A review of your record shows that you entered active duty with the Navy in October 2008.  In November 2016, a medical board diagnosed you with Post-traumatic left ankle and foot osteoarthritis, Chronic right knee patellar tendonitis, Obstructive sleep apnea and refers you to the Physical Evaluation Board (PEB).  The PEB found you unfit for continued naval service on 12 January 2017 for your left ankle and later adopted the proposed Department of Veterans Affairs (VA) rating of 10% pursuant to the disability regulations.  After you accepted the PEB findings in your case, you were discharged with severance pay on 28 April 2017.
 
The Board carefully considered your arguments that your PEB rating was erroneously assigned based on evidence your disability conditions worsened since your discharge from the Navy.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case.  Specifically, the Board found that the preponderance of the evidence does not support a finding that your left ankle condition was improperly assigned a 10% rating or that you were unfit for other disability conditions. 

First, the Board concluded the PEB properly assigned you a 10% rating for your unfitting ankle condition based on the proposed rating assigned by the VA.  As previously mentioned, the PEB is required to adopt proposed VA ratings for PEB referred disability conditions.  Since there is no evidence that the VA determined an error existed in your proposed VA rating of 10% for your ankle condition, the Board determined your ankle condition was correctly rated by the PEB.
 
Second, the Board also determined that insufficient evidence exists to find that you were unfit due to any disability condition other than your ankle.  The fact your disability conditions worsened after your discharge from the Navy was determined not to be probative on the issue of fitness for active duty since the PEB is required to determined fitness at the time of release from active duty.  Any post-discharge worsening of a disability condition falls under the purview of the VA.  Absent evidence that you were unable to perform the duties of your office, grade, rank or rating as a result of a disability condition other than your ankle condition, the Board concluded no change to your PEB record is merited.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your 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.  

Sincerely,