From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW OF NAVAL RECORD ICO ,  
  
 
Ref: (a) Title 10 U.S.C. 1552 
 
Encl: (1) DD Form 149 w/attachments 
      (2) Psychiatric Advisor CORB letter 1920 CORB: 002 of 18 May 2020 
      (3) Director CORB letter 1920 CORB: 001 of 27 May 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 increase his Physical Evaluation Board (PEB) assigned rating to 100%.    
                                              
2.  The Board, consisting of , 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, 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.  Petitioner entered active duty with the Navy in July 1995 and eventually commissioned in May 2008.  He served without incident until he was found unfit for continued naval service by the PEB on 26 March 2012 for Persistent insufficiency of the posterior lateral corner, posterior medical insufficiency and partial PCL and multiligamentous right knee injury, C7 radiculopathy with chronic neck pain, limitation of flexion of the leg, and limitation of extension of the right knee.  On 11 May 2012, the Department of Veterans Affairs (VA) assigned proposed ratings of 20% for Petitioner’s right knee condition, 20% for his Cevical Radiculopathy, 10% for right knee limitation of flexion, and 0% for right knee limitation of extension.  In addition, Petitioner was assigned a proposed 20% rating for cervical spondylosis.  The PEB adopted the proposed VA ratings for Petitioner’s unfitting conditions on 2 August 2012 resulting in Petitioner’s transfer to the Permanent Disability Retirement List (PDRL) with a combined 40% rating. 
 
     c.  In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to change his PEB assigned rating determined that the evidence supports partial relief.  The opinions state that Petitioner was likely also unfit due to his cervical spondylosis in addition to his radiculopathy condition.  After combining the proposed 20% rating for cervical spondylosis with his other unfitting condition ratings, they recommend removing Petitioner’s radiculopathy with chronic neck pain condition from his PEB findings, replacing it with Left C8 radiculopathy (20%) and Cervical Spondylosis (C5-C7) (20%), and increasing his combined rating to 50%.  Petitioner provided a rebuttal arguing the weight of the evidence supports increasing his other PEB assigned ratings based on the severity of his symptoms.  An independent medical review concluded that the freestanding medical evidence was more accurate than the proposed VA ratings in assigning an appropriate PEB disability rating. 
                                     
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial 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 increasing Petitioner’s combined disability rating to 50% based on a finding that Petitioner was also unfit for cervical spondylosis.  The Board relied on the proposed VA ratings of 11 May 2012 in determining Petitioner’s cervical spondylosis should be assigned a disability rating of 20%. 
 
Regarding Petitioner’s request to increase his disability ratings for his other unfitting conditions, the Board concluded the preponderance of the evidence does not support relief.  The Board concurred with the advisory opinion that the PEB had no authority to deviate from the proposed VA ratings based on the existing disability regulations.  As such, the Board concluded the PEB properly relied on the proposed VA ratings in assigning Petitioner his PEB ratings.  Absent evidence from the VA that their proposed ratings of 11 May 2012 were erroneous, the Board concluded the assigned PEB ratings remain appropriate.  The Board determined that to deviate from the proposed VA disability ratings would result in a violation of the military disability regulations. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by removing C7 Radiculopathy with chronic neck pain as an unfitting condition from Petitioner’s PEB record and replacing it with Left C8 Radiculopathy, VASRD 8510 at 20%, and Cervical Spondylosis (C5-C7), VASRD 5003-5242 at 20%.  Petitioner’s combined PEB disability rating with be increased from 40% to 50% effective the 30 November 2012.      
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.