Docket No. 2722-21

From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD ICO   USN 
 
Ref: (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 w/attachments 
 
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 his naval record be corrected to place him on the disability retirement list.    
                                              
2.  The Board, consisting of  and  reviewed Petitioner’s allegations of error and injustice on 27 May 2021 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 March 2007.  In 2016, Petitioner was placed on limited duty for Vertigo related symptoms including an Eustachian Tube Dysfunction and Migraine Headaches.  He is eventually referred to the Physical Evaluation Board (PEB) for his Vertigo condition and found unfit for Vertigo with the other conditions as related diagnoses.  On 5 September 2017, the Department of Veterans Affairs (VA) issued a proposed disability rating of 0% for Petitioner’s Vertigo condition.  This rating was adopted by the PEB and affirmed after a formal PEB hearing on 6 November 2017.  On 17 January 2018, Director, Secretary of the Navy, Council of Review Boards denied Petitioner’s request to increase his disability rating and place him on the disability retirement list.  As a result, Petitioner was discharged with severance pay on 28 April 2018 pursuant to his PEB findings.   
 
     c.  On 23 October 2018, the VA issued a change to Petitioner’s Vertigo rating to 30% effective 8 June 2018.  Petitioner subsequently filed an application with this Board requesting to place him on the disability retirement list based on the 2018 VA rating of 30%.  He believes the VA underestimated the severity of his condition at the time of the proposed rating.    
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  The Board concluded the preponderance of the evidence supports a finding that Petitioner be placed on the Temporary Disability Retirement List (TDRL) based on the 2018 VA rating.  While the Board found no error with the PEB’s actions, they determined that the increase from 0% to 30% in the VA’s disability rating for his Vertigo condition, issued less than two months after Petitioner’s discharge date, raises sufficient issues of injustice to merit giving Petitioner the relief he seeks in order to provide him the opportunity to be reevaluated by the PEB.     
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by placing Petitioner on the TDRL for Vertigo, VASRD Code 8100, with a 30% rating effective 29 April 2018.  Petitioner will afforded an opportunity to undergo a physical examination and have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210.  All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review. 
 
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.                    

5/29/2021
Deputy Director