Docket No: 8941-19 
Ref: Signature Date 
 

Dear :  
 
This letter is in reference to your 25 September 2019 reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your 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).  After careful and conscientious consideration of the entire record, the 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, sitting in executive session, considered your application on 24 February 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. 
 
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. 
 
You enlisted in the Marine Corps and served honorably until your discharge on 6 June 1993 due to a physical disability (with severance pay).  In May 1990, while you were on active duty, you were in a parachute accident and fractured your right ankle.  In October 1991, you were diagnosed with Partial Brown-Sequard Syndrome to the intramedullary spinal cord tumor, decadron rash, and ankle fracture of the right ankle.  In February 1992, you were referred to a Physical Evaluation Board (PEB).  In March 1992, the PEB considered two referred conditions, including Partial Brown-Sequard Syndrome, and found you unfit due to right ankle fracture with a 10% disability rating.  You were discharged from the Marine Corps in 1993 with an honorable characterization of service and severance pay due to your 10% disability rating. 
 
You request permanent medical retirement as of the date of your active-duty separation, with back retirement pay and allowances.  You assert, in part, that the Board, in its prior decision, ignored two fundamental principles of law when it denied your request for placement on the Permanent Disability Retired List (PDRL).  Specifically, you assert that any reasonable doubt in your case must be resolved in your favor and that any aggravation that occurred to a preexisting condition due to your parachute accident is compensable.  You also contend that the advisory opinion (AO) considered by the Board in that decision is in direct contravention of your treating surgeon’s position.  You provide a supplemental statement in support of your request for reconsideration, which included a comment from your surgeon.  The surgeon wrote, “(i)t continues to be my opinion that the initial symptoms of neck pain and neurological dysfunction were a direct consequence of (the) parachute accident which caused hemorrhage of the vascular malformation that was identified at the time of (the) surgery.” 
 
The Board noted that the AO it previously considered reviewed a 19 July 2018 letter from the surgeon who treated you in 1990, which concluded that your spinal hemorrhage had been acute and had likely been solely caused by the 15 May 1990 parachute accident.  The AO concluded that the preponderance of evidence supported the PEB’s finding that the cause of your Brown-Sequard Syndrome was the result of a spinal cord tumor and not the trauma incurred in the May 1990 parachute accident that resulted in the right ankle fracture for which you were found unfit for continued service. 
 
The Board concurred with that AO and its previous determination, and again determined that the PEB’s finding of unfitness for duty based solely on your ankle injury was neither erroneous nor unjust.  The Board noted your argument that the parachute accident caused or exacerbated your spinal condition, and took into account your Department of Veterans Affairs disability rating.  Nonetheless, the Board applied the guidance of SECNAVINST 1850.4 series and noted that the 1992 PEB found you unfit for your right ankle condition alone.  The Board found that your surgeon’s statements did not overcome the 1992 PEB determination, and that there is insufficient evidence to establish that you should have been placed on the PDRL when you separated from the Marine Corps. 
 
It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction.