From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:    REVIEW OF NAVAL RECORD   
 
 
Ref: (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 w/attachments 
(2) Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 11 May 2020  
(3) Director CORB letter 1910 CORB: 001 of 20 May 2020 
(4) Petitioner’s response to advisory opinion of 29 July 2020 
 
1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to place him on the disability retirement list with a combined 70% disability rating. 
                                              
2.  The Board reviewed Petitioner’s allegations of error and injustice on 13 August 2020 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, 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 active duty with the Marine Corps in April 2014 and completed his initial training pipeline.  However, he injured both of his ankles during basic training that caused bilateral ankle stability, back and knee pain.  A Magnetic Resonance Imaging conducted in 2015 identified a possible plantar fasciitis and heel condition.  In 2016, Petitioner undergoes surgery on both ankles and receives chiropractic treatment for his back and radiculopathy conditions.  In January 2017, Petitioner is diagnosed with plantar fasciitis in January 2017.  The following month, he commences physical therapy for his back and radiculopathy conditions.   
 
     c.  Due to his inability to perform his duties, Petitioner is referred to a medical board in February 2017 for bilateral pes planus, bilateral plantar fasciitis, sprain of anterior talofibular ligament of right ankle, subluxation of right ankle joint, and synovitis of right ankle.  A non-medical assessment documents Petitioner conditions and states he is unable to perform the required physical activities due to his multitude of back and leg conditions.  The Physical Evaluation Board (PEB) finds Petitioner unfit for bilateral ankle pain but concludes his other disability conditions are not separately unfitting.  The Department of Veterans Affairs proposes 10% ratings for each of Petitioner’s ankles but also assigns proposed ratings for plantar fasciitis (50%), lumbar degenerative disc disease (20%), and bilateral lower extremity lumbar radiculopathy of the sciatic nerve (10% each).  The PEB adopts the combined 20% rating for Petitioner’s ankles and Petitioner accepts the findings on 20 June 2017.  In the meantime, a medical board addendum is added to Petitioner’s file that indicates he suffers from intermittent radiculopathy pain associated with his back condition.  Petitioner is discharged on 30 August 2017 pursuant to his PEB findings.   
 
     d.  In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that the evidence supports partial relief.  The opinion recommends placing Petitioner on the disability retirement list with a combined 30% rating based on a finding that his lumbar degenerative disc disease was also unfitting with a proposed rating of 20% rating.  The opinion concluded Petitioner’s other claimed conditions did not meet the threshold for unfitness based on the medical evidence.  Petitioner provided a rebuttal arguing that the advisory opinion erroneously calculated Petitioner’s combined rating of 30%.  Based on the regulations, since Petitioner’s ankle conditions was bilateral, it is properly calculated at 21% resulting in a combined 40% rating when rounded up from 37%.  In addition, the rebuttal argues that the advisory opinion ignores the weight of the evidence by discounting the non-medical assessment that specifically addresses Petitioner’s inability to perform his duties due to his plantar fasciitis and radiculopathy condition. 
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action.   
 
The Board concluded that the preponderance of the evidence supports finding Petitioner unfit for his degenerative disc disease, plantar fasciitis, and bilateral lower extremity lumbar radiculopathy of the sciatic nerve in addition to his original unfitting bilateral ankle condition.  Despite the findings in the advisory opinions that the evidence does not support findings for Petitioner’s plantar fasciitis and bilateral lower extremity lumbar radiculopathy of the sciatic nerve, the Board relied on the 10 February 2017 non-medical assessment to conclude the preponderance of the evidence favors Petitioner’s claim.  The Board agreed with the advisory opinion that the medical evidence was inconclusive regarding the severity of Petitioner’s plantar fasciitis and bilateral lower extremity lumbar radiculopathy of the sciatic nerve conditions but felt that the specificity contained in the non-medical assessment provided sufficient evidence of his occupational impairment due to those conditions to justify placing Petitioner on the Temporary Disability Retirement List (TDRL).  Petitioner’s placement on the TDRL would allow Petitioner to be medically reexamined and allow a full review by the PEB.  
 
RECOMMENDATION: 
 
That Petitioner’s naval record be corrected, where appropriate, to show that he was placed on the TDRL, effective the date of his discharge, for Bilateral Pes Planus with Plantar Fasciitis, VASRD 5276 at 50%, Lumbar Spine Degenerative Disc Disease, VASRD 5242 at 20%, Right Ankle Pain, VASRD 5271-5024 at 10%, Left Ankle Pain, VASRD 5024-5271 at 10%, Left lower extremity lumbar radiculopathy of the sciatic nerve, VASRD 8520 at 10%, and Right lower extremity lumbar radiculopathy of the sciatic nerve, VASRD 8520 at 10%, for a combined rating of 80%.  Petitioner will be directed to undergo a physical examination in order to have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210.  All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review. 
                                                           
4.  Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that 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. 
 
5.   The foregoing action of the Board is submitted for your review and action.    
 
8/24/2020