Docket No. 9673-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR ,USN Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) Director CORB letter 1910 CORB: 001 of 28 May 2020 (3) Petitioner response to advisory opinion 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 30% 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 Navy in September 1985. A medical board diagnosed him with Tuberculosis of the Lymph Nodes and Possible Immunosuppression in May 1989 and referred him to the Physical Evaluation Board (PEB). The PEB determined Petitioner was unfit for continued naval service due to Tuberculosis of the Lymph Nodes and assigned a 100% disability rating resulting in Petitioner’s placement on the Temporary Disability Retirement List (TDRL) effective 7 July 1989. c. The Department of Veterans Affairs (VA) rated Petitioner’s unfitting condition at 100% on 24 November 1989. He subsequently underwent a follow-up VA examination on 7 January 1991 that documented Petitioner completed his course of chemotherapy treatment in November 1990 but was still experiencing symptoms of his disability condition. Based on VA regulations, his 100% rating was retained for 12 months past the completion date of his chemotherapy treatment with a reduced rating of 30% to be applied effective 1 December 1991. d. In the meantime, Petitioner underwent a periodic physical examination (PPE) on 25 January 1991. The examination documented Petitioner did not exhibit any acute symptoms but was still suffering from weight loss and fatigue due to his condition. Based on Petitioner’s reduced symptoms and completion of his treatment, the PEB found him unfit for continued naval service and reduced his disability rating to 10%. Petitioner was discharged from the Navy on 9 August 1991 with severance pay. e. In enclosure (2), the office with cognizance over Petitioner’s request to be placed on the disability retirement list concluded that the evidence does not support relief. The opinion relies on the PPE report that Petitioner had completed his course of treatment and exhibited improved symptoms to recommend denial. Petitioner responded to the opinion in enclosure (3) by arguing that his continued condition exhibited by his documented symptoms warranted retention on the disability retirement list. He also points out that he has never been rated below 30% by the VA for his unfitting 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. Despite finding that the PEB did not commit an error by reducing Petitioner’s disability rating based on the PPE report which indicated his symptoms had greatly improved, the Board determined that the interests of justice warrant Petitioner’s reinstatement to the disability retirement list based on his VA assigned rating of 30% for his unfitting condition. In the Board’s opinion, the fact Petitioner’s rating was never reduced below 30% by the VA supports a grant of relief. The Board’s opinion was influenced, in part, on how Petitioner’s case would have been resolved under current Integrated Disability Evaluation System rules. Since Petitioner was rated at 30% based on a VA examination only several weeks before the PPE, the Board concluded he deserved the benefit of the VA assigned rating. Accordingly, the Board determined Petitioner should be reinstated to the disability retirement list with a 30% rating effective the date of his discharge. RECOMMENDATION: That Petitioner’s naval record be corrected, where appropriate, to show that he was placed on the Permanent Disability Retirement List for Turberculosis of the Lymph Nodes, VASRD 6399-6731 at 30%, effective the date of his discharge from the Navy. 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 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Board Recommendation 9/7/2020 ASSISTANT GENERAL COUNSEL (M&RA)