DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

__________________________ 
                                      
Application for Correction            
of Coast Guard Record of:                                                      
                                                                                                                   BCMR Docket 
xxxxxxxxxxxxxxxxxx                                                                          No. 2001-027     
xxxxxxxxxxxxxxxxxxxxxxxxx                 
__________________________       
 

FINAL DECISION 

This final decision, dated January 17, 2002, is signed by the three duly appointed 

 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on January 17, 2001, upon the 
Board’s receipt of the applicant's request for correction of her military record.  
 
 
members who were designated to serve as the Board in this case.   
 
The  applicant,  x  xxxxxx  xxxxxx xxxxx  xxxxx  (xxxxxxxxxxxxxxxxxx),  enlisted  in 
 
the Coast Guard on July 23, 1984.  She was honorably discharged by reason of physical 
disability  with  a  20%  disability  rating  and  severance  pay  for  lumbosacral  strain,  on 
March 3, 1999.  She was assigned a RE-3P (disqualifying condition - physical disability) 
reenlistment code. She asked that her military record be corrected to show that she was 
retired  due  to  physical  disability  rather  than  having  been  discharged.    (A  disability 
rating of 30% or greater is required for a physical disability retirement.) 
 

SUMMARY OF RECORD AND SUBMISSIONS 

 
 
The  applicant  alleged  that  she  suffered  from  chronic  low  back  pain  and  DDD 
(degenerative disc disease), but the Coast Guard did not include the DDD in rating her 
disability.    She  also  alleged  that  the  Coast  Guard  improperly  found  her  to  have 
moderate rather than severe low back pain. The applicant stated that prior to her illness 
she had made the Coast Guard her “life.”  She alleged that the Coast Guard erred when 
it medically separated her with a 20% disability rating.   
 
In January 1997, the applicant complained of low back pain.  Based on an April 
 
28, 1997 MRI, the applicant was diagnosed as suffering from mild DDD in the lumbar 
(lower  back)  region.  The  MRI  showed  no  disc  protrusion  or  extrusion.    On  May  19, 

1997, two physicians at a naval hospital diagnosed the applicant as suffering from lower 
back  pain,  secondary  to  degenerative  disc  disease.    These  physicians  described  their 
physical examination of the applicant as follows: 
 

[Patient] is a well-developed, well-nourished female in no acute distress.  
Examination  of  her  back  demonstrates  a  straight  spine  with  some  mild 
tenderness  to  palpation  over  the  [lumbar  region].    Motor  examination 
demonstrates +5 out of 5 strength throughout her lower extremities and 
there are no significant sensory deficits, although the [patient] does admit 
to  tingly  sensation  at  the  medial  aspect  of  her  right  leg  with  no 
dermatomal  distribution.    [Patient]  has  good  heel  and  toe  walking,  and 
has  negative  straight  leg  raises.    Her  deep  tendon  reflexes  are  +2 
throughout both lower extremities.  She demonstrated no sacroiliac joint 
instability and had no pain with extension or rotation of the spine. 

 
Physical Disability Evaluation System (PDES) Processing  
 
 
On  June  16,  1998,  an  Initial  Medical  Board  (IMB)  was  held  to  determine  the 
applicant’s medical condition.  Relying primarily on the May 1997 examination, the IMB 
diagnosed  the  applicant  as  suffering  from  pain  in  the  lumbar  region  (lumbago)  and 
expressed the opinion that she was not fit for full duty. The IMB noted the applicant’s 
complaints  about  “daily  lumbar  pain,  lumbar  spasm,  numbness  right  leg,  numbness 
right foot, sometimes numbness left foot, and numbness left hand.” The IMB referred 
the applicant’s case to the Central Physical Evaluation Board (CPEB).  
 
 
On  August  18,  1998,  the  CPEB  met  and  recommended  that  the  applicant  be 
discharged with a 10% rating disability due to “lumbosacral strain: with characteristic 
pain on motion.”  The applicant rejected the findings and recommendation of the CPEB 
and her case was referred to a Formal Physical Evaluation Board (FPEB).  The applicant 
had appointed military counsel to represent her before the FPEB. 
 
 
On  November  5,  1998,  the  FPEB  met  to  consider  the  applicant’s  case.    The 
applicant was represented by counsel and given the opportunity to submit evidence in 
her behalf.  The FPEB determined that the applicant was unfit to perform the duties of 
her grade and rate and recommended that she be discharged from the Coast Guard due 
to  the  physical  disability  “lumbosacral  strain:  unilateral,  in  standing  position”  with  a 
20% disability rating.  (According to the Department of Veterans Affairs Schedule for 
Rating  Disabilities  (VASRD),  which  the  military  uses,  a  20%  rating  for  lumbosacral 
strain should include muscle spasms on extreme forward bending, loss of lateral spine 
motion, and unilateral in a standing position.)   
 
 
The  applicant  rebutted  the  findings  of  the  FPEB  and  requested  that  she  be 
temporarily or permanently retired with a 40% disability rating.  She stated that since 

the VASRD does not list DDD, she could have been rated by analogy for intervertebral 
disc  syndrome  instead  of  lumbosacral  strain.  The  applicant  submitted  another  MRI 
dated October 27, 1998, which showed that the applicant had minimal spondylosis.  (A 
general  term  for  degenerative  spinal  changes  due  to  osteoarthritis.    See  Dorland’s 
Illustrated Medical Dictionary, 29th Edition, p. 1684.) She submitted additional medical 
information showing that on November 25, 1998, she was treated for acute exacerbation 
of low back pain. The President of the FPEB informed the applicant that her rebuttal did 
not  result  in  a  change  of  the  FPEB’s  findings.    The  President  of  the  FPEB  told  the 
applicant that her case would be forwarded for review to the Physical Review Council 
(PRC). 
 
 
The  applicant  submitted  a  statement  to  the  PRC  stating  that  her  preference 
would  be  to  remain  on  active  duty  or  in  the  alternative  to  be  temporarily  or 
permanently  retired.    Attached  to  the  applicant’s  rebuttal  was  an  orthopedic  report 
from  a  civilian  clinic  dated  December  1,  1998.    The  report  stated  that  the  applicant 
described her pain as moderate to severe and that the pain is made worse by sneezing, 
bending, sitting, standing, and walking.  “Her low back pain has been to the point that 
she has hired [a] housekeeper to facilitate household chores.”  The orthopedist did not 
perform  any  new  diagnostic  tests,  but  rather  reviewed  those  that  had  been  taken  by 
military  facilities.    The  orthopedist  diagnosed  the  applicant  as  suffering  from  chronic 
low back pain, lumbar degenerative disc disease, and intervertebral disc derangement. 
 
 
 
On  January  22,  1999,  the  PRC  concurred  with  the  findings  of  the  FPEB.    On 
January  27,  1999,  the  Chief  Counsel  reviewed  the  disability  proceedings  and  found 
them  to  be  in  acceptable  form  and  technically  correct.    On  January  29,  1999,  the 
Commandant  of  the  Coast  Guard  took  final  action  and  approved  the  applicant’s 
discharge  due  to  disability  with  a  20%  disability  rating  for  “lumbosacral  strain; 
unilateral, in standing position.” 
 
Department of Veterans Affairs (DVA) Rating Decision 
 
 
On December 8, 1999, after the applicant’s discharge from the Coast Guard, the 
DVA  granted  the  applicant  a  20%  disability  rating  for  “low  back  pain  [and] 
degenerative  disc  disease  [of  the]  lumbar  spine.”    (Some  of  the  applicant’s  other 
conditions  were  rated  by  the  DVA  but these  are  not  at  issue  in  this  case  and  are  not 
discussed  in  this  decision.)    The  DVA  noted  that  during  its  medical  examination, the 
applicant  related  frequent  spasms  and  limitation  of  motion  due  to  pain.    The  DVA 
rating decision also stated that X-rays taken during the DVA examination were normal, 
but  an  earlier  MRI  and  X-rays  taken  while  the  applicant  was  on  active  duty  noted 
minimal  posterior  disc  bulge  without  evidence  of  true  herniation  or  protrusion.    The 
DVA  rating  decision  also  noted  that  1998  EMG  (electromyogram)  and  NCV  (nerve 
conduction velocity) studies at a civilian institution did not reveal any evidence of right 
lumbosacral  radiculopathy  (disease  of  the  nerve  roots).    The  DVA  report  stated,  “A 

higher evaluation of 40 percent is not warranted unless the record shows lumbosacral 
strain with listing of the whole spine to the opposite side, positive Goldthwait’s sign, 
marked limitation of forward bending in standing position, loss of lateral motion with 
osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above 
with abnormal mobility on forced motion.” 
 
 
On October 10, 2001, the DVA issued an updated rating decision increasing the 
applicant’s  disability  rating  for  the  back  to  40%.    This  increase  was  based  on  a  DVA 
medical  examination  dated  January  31,  2001.    During  this  medical  examination,  the 
applicant complained of increased pain.  The DVA examiner noted that the applicant’s 
posture was abnormal.  The DVA report further stated: 
 

[The applicant] cannot stand in any one position for any length of time.  
Examiner  noted  the  veteran  walking  as  if  she  is  in  a  lot  of  pain  in  her 
lower  back.    The  [applicant]  has  limitation  of  function  of  standing  and 
walking.    She  can  only  stand  for  15  minutes  and  can  only  walk  for  30 
minutes.  Examiner noted tenderness throughout the entire lumbar area   . 
. . She was unable to lay flat due to extreme pain.  Range of motion of the 
lumbar  spine  is  flexion  15  degrees  with  pain  at  15  degrees,  extension  5 
degrees  with  pain  at  5  degrees;  right  lateral  25  degrees  with  pain;  left 
lateral 25 degrees with pain; right rotation 35 degrees and left rotation 35 
degrees.    Examine  noted  no  muscle  atrophy  and  decreased  sensation 
along the right lateral thigh.  Reflexes are within normal limits.    

 
Views of the Coast Guard  
 
On June 4, 2001, the Board received an advisory opinion from the Chief Counsel 
 
of  the  Coast  Guard.    He  recommended  that  the  application  be  “denied  for  lack  of 
proof.”  
 
 
The  Chief  Counsel  stated  that  the  applicant  received  a  full  and  fair  hearing 
before  the  Physical  Disability  Evaluation  System  (PDES),  which  found  her  physical 
condition  caused  her  to  be  unfit  for  continued  duty  by  reason  of  physical  disability, 
with a 20% disability rating.    
 
 
The Chief Counsel said that the applicant failed to prove that she should have 
been medically retired from the Coast Guard with a disability rating of 30% or higher.  
He  noted  that  although  the  Coast  Guard  is  not  bound  by  DVA  rating  decisions,  it  is 
noteworthy  that  the  [DVA]  assigned  a  20%  disability  rating  for  her  back  condition, 
which is the same percentage of disability assigned by the Coast Guard. 
 
 
The  applicant  failed  to  prove  that  the  Coast  Guard  committed  error  when  it 
involuntarily  separated  her  in  1999  with  a  20%  disability  rating.    The  Chief  Counsel 

stated  that  the  Government  does  not  have  to  disprove  the  applicant’s  allegations  of 
error and is entitled to the presumption that its officials acted correctly, lawfully, and in 
good faith in the applicant’s case.   He stated that the applicant has failed to provide 
sufficient  evidence  to  overcome  the  presumption  of  regularity  afforded  the  military 
officials  who  determined  that  the  applicant’s  physical  disabilities  justified  a  20% 
disability rating. 
 
 
The  Chief  Counsel  noted  that  the  findings  of  a  1997  and  a  1998  MRI  of  the 
applicant’s  back  were  consistent  with  the  PDES  findings  of  lumbosacral  strain  with 
characteristic pain with motion at the 20% disability rating level.  “Moreover, to find for 
the applicant, the Board would have to determine that she suffered from chronic severe 
pain at the time of her FPEB rather than mild to moderate pain.”  The Chief Counsel 
stated  there  is  insufficient  evidence  in  the  record  to  make  that  finding  by  a 
preponderance  of  the  evidence.    Accordingly,  he  recommended  that  the  Board  deny 
relief in this case. 
 
Applicant’s Reply to the Views of the Coast Guard 
 
 
On  July  23,  2001,  the  Board  received  the  applicant’s  reply  to  the  views  of  the 
Coast Guard.  She repeated her request for a retirement due to physical disability.  She 
further stated as follows: 
 

[I]  contend[]  the  evidence  did  not  adequately  reflect  the  extent  of  [my] 
disability  from  which  [I]  suffer[].    Moreover,  it  did  not  take  into 
consideration  the  secondary  disabilities  connected  to  the  spinal  disc 
condition.  It has been clearly defined in 38 CFR § 3.310 (1996) that service 
connection  may  be  granted  for  disabilities  resulting  from  a  service 
connected  disease  or  injury.    Judicial  interpretation  of  the  matter  of 
secondary service connection, embodied in 38 CFR § 3.310 (1996), requires 
consideration  of  whether  or  not  a  service  connected  disability  either 
causes or aggravates another condition.  . . .  

 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
submissions of the applicant and the Coast Guard, the military record of the applicant, 
and applicable law: 
 
 
United States Code.  The application was timely. 
 
 
2. In 1997, after 11 years of service in the Coast Guard, the applicant, a xxx, was 
evaluated for low-back pain and DDD.  The FPEB met on November 5, 1998, and found 

1.    The  Board  has  jurisdiction  of  the  case  pursuant  to  §  1552  of  title  10  of  the 

the  applicant  unfit  to  perform  the  duties  of  her  rating  due  to  a  physical  disability 
considered to be 20% disabling.  On January 29, 1999, the Commandant directed that 
the  applicant  be  separated  from  the  Coast  Guard  with  severance  pay.    On  March  3, 
1999, the applicant was honorably discharged with a JFL (physical disability) separation 
code. 
 
 
3.  The  applicant  has  failed  to  submit  sufficient  evidence  establishing  that  the 
Coast  Guard  committed  an  error  or  injustice  by  diagnosing  the  applicant  with 
lumbosacral strain that was 20% disabling at the time of her discharge.  As the applicant 
stated,  DDD  is  not  listed  in  the  VASRD.    Therefore,  her  disability  was  rated  under 
lumbosacral  strain,  which  in  the  opinion  of  the  FPEB  was  the  most  analogous  to  the 
applicant’s disability.  While the applicant suggested that she should have been rated 
by  analogy  under  intervertebal  disc  syndrome,  she  submitted  insufficient  evidence 
establishing  that  intervertebral  disc  syndrome  was  more  appropriate  for  rating  her 
disability than lumbosacral strain.  Moreover, even if intervertebral disc syndrome were 
the more appropriate diagnosis for rating the applicant’s disability, she would still have 
to show that her condition was severe rather than moderate as rated by the FPEB.  A 
finding that an intervertebral disc syndrome disability is of a moderate nature carries a 
20% disability rating, which  is the applicant’s disability rating for lumbosacral strain.  
See 38 CFR 4.71a. 
 
 
4.  Whether listed under lumbosacral strain or intervertebral disc syndrome, the 
question is did the Coast Guard commit an error by rating the applicant’s condition as 
20%  disabling,  which  indicated  her  condition  to  be  moderate rather  than  severe.    An 
April 30, 1997, MRI showed the applicant with mild degenerative disc disease, but no 
evidence of disc protrusion or extrusion.  A medical report dated May 19, 1997 stated 
that the applicant was not in any acute distress, but noted mild tenderness to palpation 
in the lumbar region.  The report also stated that the applicant had no sacroiliac joint 
instability and no pain with extension or rotation of the spine.  An October 27, 1998 MRI 
stated that the applicant had minimal spondylosis and 1998 EMG and NCV studies did 
not reveal any evidence of right lumbosacral radiculopathy.  The VASRD describes the 
requirements for a 20% disability rating as “muscle spasm on extreme forward ending, 
loss  of  lateral  spine  motion,  unilateral  in  standing  position.”  The  MRIs  and  medical 
reports  were  consistent  with  the  VASRD  and  the  FPEB’s  determination  that  the 
applicant  had  a  20%  (moderate)  disability  for  lumbosacral  strain  at  the  time  of  her 
discharge. 
 
 
5.    For  the  applicant’s  lumbar  strain  to  have  been  rated  severe  rather  than 
moderate at the time of her discharge, her condition needed to include a “listing of the 
whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward 
bending  in  standing  position,  loss  of  lateral  motion  with  osteo-arthritic  changes,  or 
narrowing or irregularity of joint space, or some of the above with abnormal mobility 
on forced motion.”  See 38 CFR 4.71a. (VASRD).  The evidence of record does not show 

that  the  applicant  met  these  requirements  such  that  her  condition  should  have  been 
rated severe rather than moderate.      
 
6.  The fact that the applicant received a higher disability rating from the DVA 
 
approximately two years after her discharge from the Coast Guard does not mean that 
the  Coast  Guard  committed  an  error  or  injustice  by  assigning  the  applicant  a  lower 
rating at the time of her discharge.  The Board notes that the DVA’s initial rating of the 
applicant’s back condition in December 1999 was the same as that given by the Coast 
Guard upon the applicant’s discharge in March 1999.  Moreover, the Court of Federal 
Claims  has  stated,  "[d]isability  ratings  by  the  Veterans  Administration  [now  the 
Department  of  Veterans  Affairs]  and  by  the  Armed  Forces  are  made  for  different 
purposes.  The Veterans Administration determines to what extent a veteran's earning 
capacity  has  been  reduced  as  a  result  of  specific  injuries  or  combination  of  injuries. 
[Citation omitted.]  The Armed Forces, on the other hand, determine to what extent a 
member  has  been  rendered  unfit  to  perform  the  duties  of  his  office,  grade,  rank,  or 
rating  because  of  a  physical  disability.  [Citation  omitted.]    Accordingly,  Veterans' 
Administration  ratings  are  not  determinative  of  issues  involved  in  military  disability 
retirement cases."  Lord v. United States, 2 Cl. Ct. 749, 754 (1983). 
 
 
7.    The  applicant  received  all  the  due  process  rights  to  which  she  was  entitled 
during  the  PDES  processing.  She  was  represented  by  counsel  during  the  FPEB.    She 
failed to convince any of the boards within the PDES that she should have received a 
higher disability rating.  The Board will not disturb the decision of the Coast Guard in 
the absence of a preponderance of the evidence showing that its decision was in error or 
unjust.  With regard to the applicant’s arguments about service connection as discussed 
in 38 CFR 3.310, the Board finds this provision applies to the DVA and not the Coast 
Guard.   
 
 

8. Accordingly, the applicant’s request for relief should be denied.   

The  application  of  xxxxxx  xxxxxxxxxxxxxxxxxxxxx,  xxx  xx  xxxx,  USCG,  for 

ORDER 

 

 

 
 
Angel Collaku 

 

 

 
Astrid Lopez-Goldberg 

 

 

 

 
L. L. Sutter 

 

 

 

 
 

 
 

 
correction of her military record is denied.