Docket No. 8891-19
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 w/attachments 
        (2) Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 10 June 2020  
        (3) Director CORB letter 1910 CORB: 001 of 6 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.   Petitioner 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 7 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, relevant portions of 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.  A review of Petitioner’s record shows he entered active duty with the Navy in February 2013.  He suffered his first seizure in 2014 and was prescribed Keppra after suffering a second seizure in 2015.  A medical board referred him to the Physical Evaluation Board (PEB) which found him unfit for continued naval service in February 2016 due to Epilepsy.  Based on an assigned 80% disability rating, Petitioner was placed on the Temporary Disability Retirement List (TDRL) on 28 May 2016.   
 
     c.  During an 18 August 2017 medical visit with a Department of Veterans Affairs (VA) provider, it was noted that Petitioner was likely noncompliant with his Epilepsy medication based on his prescription refill history and a Keppra level check which showed undetectable levels of the medication in his system.  On 1 December 2017, Petitioner underwent a TDRL Periodic Physical Examination (PPE) that reported he was doing well with no reported seizures despite suffering from auras.  Based on the PPE report, the PEB found Petitioner unfit for continued naval service and recommended lowering his disability rating to 20%. After Petitioner requested a formal hearing, the formal PEB determined that a 20% rating was appropriate, despite a recent seizure that would have warranted a 40% rating, since Petitioner was 50% noncompliant with his medication.  Petitioner filed a Petition for Relief that was later denied by Director, Secretary of the Navy Council of Review Boards (CORB) based on inconsistencies in his formal PEB testimony, medical records, and assertions that he was compliant with the seizure medication.  Based on these findings, Petitioner was ordered removed from the TDRL and discharged with severance pay.     
 
     d.  This Board previously denied Petitioner’s request to be reinstated to the disability retirement list on 25 October 2018 based on lack of evidence he was compliant with his medication. 
 
     e.  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 relief.  The opinions state that Petitioner was erroneously rated at 20% based on lack of evidence that he was compliant with his prescribed medication.  Based on evidence submitted by Petitioner that he was compliant, he should be placed on the disability retirement list with a 40% disability rating. 
                                 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  In this regard, the Board concurred with the Advisory Opinions at enclosures (2) and (3).  Specifically, the Board determined that the preponderance of the evidence supports a finding that Petitioner was compliant with his prescribed medication at the time of his discharge from the Navy.  Therefore, he should be placed on the Permanent Disability Retirement List with a 40% rating, without any reduction, as determined by the formal PEB based on his seizure history while on the TDRL.     
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by placing Petitioner on the Permanent Disability Retirement List for Epilepsy, VASRD 8910, with a 40% rating effective the date of his discharge from the Navy.  
 
4.  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. 
 
5.  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 Regulation, Section 723.6(e)) and  
having assured compliance with its provisions, 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.