Docket No: 7402-19             
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.     
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 27 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, the applicable Advisory Opinion (AO) dated 14 May 2020, and your response to the AO dated 22 May 2020. 
 
You enlisted in the Marine Corps and began a period of active duty in September 1989.  In 1995, a Medical Board referred you to a Physical Evaluation Board (PEB) for diagnosed Mechanical Back Pain from Bilateral PARS Defect.  A 3 November 1995 Record Review Panel (no known as the Informal Physical Evaluation Board (PEB)) found you unfit duty due to Mechanical Back Pain for Bilateral PARS Defect 7242, at a 10% rating; the condition was determined to have Existed Prior to Enlistment (EPTE).  Following the Record Review Panel, you signed an Election of Options form indicating that you accepted the findings. You were discharged from the Marine Corps on 1 February 1996, due to a physical disability with severance pay, and received an honorable characterization of service and a reentry (RE) code of RE-3P. 
 
In your petition to the Board, you request that additional conditions be added to reflect a military (service-connected) disability, and that you receive a change in your disability separation from the Marine Corps resulting in a transfer to the Permanent Disability Retired List (PDRL).  You contend that after being Medically Separated with a 10% rating, your treating professionals have concluded that you have other injuries relating to your original diagnoses have continued to worsen.  You ask that the following conditions be connected directly or secondarily to your Medical Discharge: (1) Knees (both)—left and right due to compensating for his back and hip bone pain; (2) Cervical Strain (previously rated with radiculopathy); (3) Degenerative disc disease of the lumbar spine; (4) Radiculopathy, right lower extremity; (5) Radiculopathy, left lower extremity; (6) Radiculopathy, right upper extremity; (7) Radiculopathy, left upper extremity; and (8) Cervical strain (previously rated with radiculopathy) –(second articulation).  You assert that each of these conditions are connected to your back and neck diagnosis for which you were medical separated; you further assert that these conditions are service-connected and merit correction to your record.  You provide information regarding the worsening of your medical conditions since your discharge in 1996 and disability rating information from Veterans Affairs (VA).  You also state that you are currently dealing with numbness in your hands and fingers on a daily basis. 
 
As part of the review process, the Council of Review Boards reviewed your request and issued an AO dated 14 May 2020.  The AO noted the findings of the November 1995 Record Review Panel and stated that “(t)here is no additional service treatment record mentioning either radiculopathy or evidence of loss of sphincter control, and no additional mention of the latter anywhere in the submitted evidence.”  The AO considered that the mere presence of a medical condition corresponding to a disability entry in the VASRD is insufficient to warrant either a finding of unfitness for continued service or to warrant a specific disability rating in the absence of demonstrated duty performance impairment of sufficient magnitude as to have rendered you unfit for continued naval service.  The AO concluded there is insufficient evidence from the timeframe of your enlistment in the Marine Corps that documents the presence of conditions or disability in addition to the diagnosed Mechanical Back Pain for Bilateral PARS Defect 7242, for which you were separated with severance pay.  The AO determined that the evidence does not support your request.   The AO was provided to you, and you were given 30 days in which to submit a response.  You submitted a rebuttal dated 22 May 2020, in which you note that you have been rated 100% disabled through the VA since being discharged.  You state that your back issues continued to worsen, you have had surgery to fuse your C5 through C7, and that you have been advised you will require a double knee replacement and hip surgery.  You also note that you have a service-connected disability rating for sleep apnea (50%) and PTSD-personal trauma (70%).  You assert that at the time of your PEB, you took issue with the finding that your back condition was EPTE and you claim that you were in excellent physical and mental health when entering the Marine Corps.  You provide a letter from the VA with the rated disabilities itemized with rating percentages, service-connected determination, and effective dates for the ratings, as applicable.  
 
The Board considered your application, your available service record, the AO, and your rebuttal.  Even in consideration of your contention that you took issue with the EPTE determination during the Record Review Panel (PEB) in 1995, and noting your current VA ratings, the Board concurred substantively with the finding of the AO.  The Board relied in part on your 22 November 1995 acceptance of the Preliminary Findings of the Record Review Panel/PEB which found that your Mechanical Back Pain from Bilateral PARS Defect 7242 was EPTE and had been aggravated (not incurred) during your military service.  The Board noted that fact that the VA has since issued you a combined rating of 100% disabled for various conditions, including service-connected radiculopathy, is not considered probative on the PEB decision since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated.  The Board determined that you have not demonstrated that you were, in fact, unfit to reasonably perform your duties at that time of your discharge because of the additional conditions and disabilities for which you now seek a disability determination and/or transfer to the PDRL. Accordingly, your application has been denied. 
 
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,