DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 9634-19 
Ref: Signature Date 

Dear

This letter is in reference to your reconsideration request dated 8 March 2019.  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.
 
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 16 January 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 Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You provided a new letter reiterating your assertions that your decision to accept the Physical Evaluation Board findings was coerced and the Department of Veterans Affairs (VA) range of motion measurements were inaccurate when compared to other measurements taken during physical therapy sessions contemporaneous with the VA measurement.  Unfortunately, the Board again disagreed with your rationale for relief.  First, despite your assertions to the contrary, the Board found you voluntarily accepted the PEB findings in your case.  The Board relied on your 21 February 2014 acceptance letter as evidence that contradicts your assertion of coercion.  Absent credible corroborating evidence that you were coerced into accepting the PEB findings, the Board determined the preponderance of the evidence does not support your claim.  Second, the Board concluded that the PEB findings in your case were accurate based on the VA’s proposed disability rating of 20% foryour back condition.  The PEB is required by regulation to accept the proposed VA ratings for PEB referred unfitting disability conditions. In your case, the VA assigned you a 20% rating based on their range of motion measurement that you feel was inaccurate.  However, the Board found no evidence in the record that shows the VA changed their proposed rating based on your assertion of an error.  Absent evidence from the VA that their proposed rating was assigned in error, the Board felt the PEB findings in your case remain appropriate.  Third, the Board concurred with the VA proposed rating for your back condition based on the 11 September 2013 range of motion measurement that indicated a 70-degree range of motion. Despite previous range of motion measurements from earlier physical therapy sessions, the Board relied on the most recent measurement when considering whether the VA rating was accurate.  They also found no evidence to support your assertion that you were assisted in performing a 70-degree flexion.  Since your forward flexion was measured greater than 60 degrees but less than 85 degrees, the Board concluded the proposed 20% rating for your back condition was appropriate. The Board also noted, contrary to your assertion, that the VA considered the fact your back condition was painful during their examination and during motion.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

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. 

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,