DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-072 
 
XXXXXX, XXXXXX X. 
XXX XX XXXX, XXX 
   

 

 
 

DECISION OF THE DEPUTY GENERAL COUNSEL 

ACTING UNDER DELEGATED AUTHORITY 

       
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Date:  
 
 
 
 

 

 

 

 

 
 
 
 

__X __  I approve the recommended Order of the Board. 

______  I disapprove the recommended Order of the Board.  

______  I concur in the relief recommended by the Board. 

 

 
February 26, 2003
 
 
 
 

 
 
 
 

 

 
 
 
 

 
   
 
 
 
 

 
 
 
 
 
 

     

 Rosalind A. Knapp 
  Deputy General Counsel 
  as designated to act for the 
  Secretary of Transportation 

 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2002-072 
 
XXXXXX, XXXXXX X. 
XXX XX XXXX, XXX 
   

 

 
 

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
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 March 26, 2002 upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated January 16, 2003 is signed by the three duly appointed 

 

APPLICANT’S REQUEST 

 

The applicant asked the Board to increase his disability rating from thirty percent 
disabled to fifty percent disabled, with entitlement to a corresponding adjustment in the 
disability compensation he has received.   

 

APPLICANT’S ALLEGATIONS 

 
The applicant stated that on March 8, 19XX, he was found unfit for duty under 
the  Department  of  Veterans  Affairs  Schedule  for  Rating  Disabilities  (VASRD)  code 
number  9434,  major  depressive  disorder,  and  was  permanently  retired  with  a  thirty 
percent disability rating.  He alleged that the finding that he was thirty percent disabled 
is  in  error  because  the  Formal  Physical  Evaluation  Board  (FPEB)  did  not  apply  the 
guidelines  under  the  Department  of  Defense  (DOD)  Instruction  1332.39.    Specifically, 
the applicant contended that under the DOD instruction, the record demonstrates that 
his disability met the definition of  “considerable,” which corresponds to at least a fifty 
percent disability rating.   

 
The  applicant  argued  that  because  he  has  had  (a)  multiple  hospitalizations;  (b) 
constant  medication;  (c)  an  inability  to  work;  (d)  suicidal  ideations;  (e)  social 
maladaptation;  and  (f)  a  five-year  history  of  depression,  “[e]very  indicia  for  a  fifty 
percent rating was met in [his] case.”  The applicant asserted that the correction would 
award  him  the  proper  percentage  of  disability  and  any  lesser  percentage  is  simply 
unsupportable. 

 

 

SUMMARY OF  THE APPLICANT’S RECORD 

On  February  9,  19XX,  the  applicant  enlisted  in  the  Coast  Guard.    His  record 
contains a medical report of his pre-enlistment medical examination, dated January 15, 
19XX.  It indicated that the applicant had no disqualifying defects and that he satisfied 
the  physical  standards  under  the  Coast  Guard  Medical  Manual  for  his  original 
enlistment.   
 

According  to  his  military  medical  records,  beginning  in  August  19XX,  the 
applicant  was  evaluated,  hospitalized,  and  treated  on  several  occasions  for  anxiety, 
depression,  and  suicidal  ideation.    During  the  course  of  his  medical  treatment, 
examining  physicians  and  medical  personnel  primarily  assessed  the  applicant  as 
suffering  from  major  depressive  disorder  (MDD)  and  obsessive/compulsive  disorder 
(OCD). 
 
On  December  11,  19XX,  the  applicant  was  examined  for  the  purpose  of  his 
referral  to  an  Initial  Medical  Board  (IMB).    During  this  evaluation,  the  applicant  was 
diagnosed  with  “major  depression,  obsessive/compulsive  disorder,  migraines,  and 
hearing loss.”   Moreover, the applicant was found to be “not qualified for retention and 
to perform the duties of his rank at sea and foreign shores.”  However, for reasons not 
explained  in  the  medical  record,  the  applicant’s  IMB  was  not  completed  until 
approximately nine months later.   

 
The  IMB  narrative  medical  summary,  dated  September  15,  19XX,  contains  the 

following history of the applicant’s medical condition:    

 

[When the cutter to which the applicant was assigned began to develop 
some  minor  problems,  the  applicant]  became  increasingly  depressed,  anxious, 
unable to eat for several days, and unable to sleep due to his concerns about the 
condition of the ship.  He related his feeling to the [Commanding Officer] that he 
could no longer remain on board and was evaluated at [a local clinic and referred 
to a different facility] for further evaluation and treatment.  He was seen on an 
outpatient basis.  He reported that “It got to me, I can’t do it anymore.”  He felt 
that  he  was  not  trained  enough  to  handle  the  problems  of  [the  cutter]  and  to 
troubleshoot  each  problem  as  it  arose  ….    This  situation  was  compounded  by 
multiple psychological stressors which included being away from his wife and 

child for months, financial difficulties, relational problems with his previous wife 
and his first child, bereavement issues and relational problems with other family 
members.    Over  the  previous  six  months  he  reported  increasing  depressive 
symptoms, decreased appetite, fatigue and decreased energy, poor sleep, feelings 
of  worthlessness  and  guilt,  difficulty  concentrating  and  completing  tasks, 
isolat[ion] and disinterest in activities with others, ruminating over past events, 
and fleeting thoughts of suicide.  … Further evaluation at this juncture revealed 
significant  partner  relational  problems  and  obsessive/compulsive  traits.    His 
long  term  functioning  is  characterized  by  preoccupation  of  orderliness, 
perfectionism, and control as manifested by his preoccupation with details, rules 
and  perfection  which  interfere  with  completion  of  tasks,  resultant  rigidity  and 
reluctance  to  delegate  tasks.    These  finding[s]  correlate  well  with  his  stellar  13 
year performance record.  …  
 
The  IMB  narrative  summary  also  indicated  that  the  applicant’s  prognosis  was 
“reasonably good” and that he was expected to “remain fit for duty.”  He was found Fit 
for Duty (FFD) and diagnosed as follows:  
 
Axis I: 
 
Axis II: 
Axis III: 
 
 

1.  Major Depressive Disorder, single episode, in partial remission 
2. 
 
1.  Chronic prostatitis 
2. 

296.25 
V61.1 
 
 
 

Partner Relational Problem 
Obsessive-compulsive traits 

Sexual dysfunction secondary to prostatitis 

On October 12, 19XX, the IMB recommended that the applicant’s case be referred 
to the Central Physical Evaluation Board (CPEB) for a determination of his fitness for 
duty.   The CPEB found the applicant FFD.   On October 29, 19XX, the applicant was 
notified  of  the  FFD  finding  and  indicated  that  he  did  not  wish  to  submit  a  rebuttal 
statement.    However,  by  letter  dated  November  16,  19XX,  the  applicant  rejected  the 
findings of the CPEB.  He submitted a rebuttal statement, which argued that his health 
had not improved enough to allow his return to full duty status.   

 
On  November  19,  19XX,  the  applicant’s  officer-in-charge  submitted  a  letter  in 
support  of  the  applicant’s  rebuttal  statement,  stating  that  he  “would  not  want  [the 
applicant]  working  for  [him]  nor  would  [he]  recommend  [the  applicant]  to  any  other 
command in his current condition.”  Moreover, by letter dated November 30, 19XX, the 
applicant’s  Group  Commander  strongly  recommended  the  applicant’s  separation 
following consideration by the CPEB and indicated that he concurred with the findings 
of the applicant’s December 11, 19XX medical evaluation.   

 
In a letter dated December 15, 19XX, the applicant’s Group Commander renewed 
his  recommendation  for  the  applicant’s  separation  based  upon  his  recent  seven-day 
hospitalization,  beginning  December  3,  19XX,  and  an  incident  on  the  evening  of 
December  14,  19XX  when  the  applicant  suffered  a  suicidal  state  of  mind.    The 

applicant’s  Group  Commander  additionally  recommended  an  accelerated  CPEB 
because  he  believed  the  foregoing  to  suggest  that  the  applicant’s  psychological 
condition was deteriorating.     

 
On December 15, 19XX, the CPEB determined that the applicant’s case was not 
sufficiently  resolved  to  make  final  and  fair  findings  or  recommendations  based  upon 
the information available to the board.  The CPEB ordered a Disposition Medical Board 
(DMB)  to  be  convened  in  accordance  with  the  Physical  Disability  Evaluation  System 
(PDES), COMDTINST M1850.2C. 
 

On December 17, 19XX, the applicant was admitted to a medical facility for three 
days  for  his  fifth  psychiatric  hospitalization  for  treatment  of  depression  and  related 
symptoms.  The applicant was given a final diagnosis upon his discharge on December 
20, 19XX, as follows: 
 

History of obsessive-compulsive disorder 

Axis I  Major depressive disorder 
 
Axis II  Deferred 
Axis III  History of prostatitis 
Axis IV  Questionable 
Axis V  Global Assessment of Functioning was at 35 at the time of admission 
and  Global  Assessment  of  Functioning  is  65  to  70  at  the  time  of 
discharge. 

   
 
  
 
 
 
 

 
As  part  of  his  planned  treatment,  the  applicant  was  prescribed  medication,  and 
arrangements were made for him to follow-up with his treating physician.   
 
 
completed.  In that report, the applicant’s condition was assessed as follows:   
 

On February 3, 19XX, a narrative summary of the applicant’s reevaluation was 

Since the Initial Medical Board was completed on September 15, 19XX, [the applicant’s] 
medical  condition  has  deteriorated  considerably. 
  Despite  outpatient  psychiatric 
treatment,  [his]  apparent  recovery  arrested  and  over  the  next  two  months  he  began  to 
exhibit  increased  symptoms  of  Major  Depression  once  again.    [The  applicant]  …  was 
subsequently hospitalized … on 11/26/XX.  There he was started on Depakote … as an 
adjunct to the Effexor XR for mood stabilization.  A longer hospitalization period was felt 
necessary for him to stabilize so he was transferred … on 12/3/XX.  While [at the new 
facility]  he  quickly  advanced  to  ward  status  and  participated  actively  within  the 
therapeutic  milieu.    He  resolved  his  suicidal  ideation  and  agreed  with  the  disposition 
plans  that  he  return  to  his  station  ….    He  was  discharged  …  on  12/10/XX  with  the 
recommendation  that  he  remain  on  limited  duty  and  with  the  diagnosis  of  Major 
Depressive  Disorder,  severe,  chronic  without  psychotic  features  and  Obsessive-
compulsive traits.  … 

In  the  following  week,  [the  applicant]  decompensated  again  to  the  point  of  having 
suicidal ideation.  This episode was exacerbated by several factors.  He was now cast in a 
new  work  environment  with  unfamiliar  coworkers  and  supervisors,  he  was  further 

 

isolated from his family  without a place to live (having been given temporary  quarters 
within the station) or a form of transportation (his wife had their only automobile) and 
he still had the legal charges pending as well as a state family youth services reviewing 
his case.  His work environment deteriorated as he perceived that his supervisor … was 
reprimanding  him  wrongly  for  the  legal  charges  pending  against  him  which  he 
adamantly  contested  and  for  other  minor  disagreements.    With  the  resurfacing  of  his 
suicidal  ideation  he  was  hospitalized  on  12/17/XX  ….    During  this  hospitalization  he 
was started on Risperdal …(a major tranquilizer) and Celexa …(an antidepressant) along 
with the Depakote and Effexor which he had been taking.  ….  He quickly stabilized … 
and was discharged on 12/20/XX… with a diagnosis of Major Depressive Disorder. …   
 

 

After assessment, with input from his wife, USCG Work-Life, and a state xxxx Services, 
and review of the events which led to his difficulties in November, it was concluded that 
[the  applicant]  was  not  a  threat  or  danger  to  his  children  or  his  wife.    The  restraining 
order  was  dropped  which  allowed  him  to  return  to  live  with  his  family.    This  was 
mutually  agreed  upon  and  so  [upon  his  discharge]  he  returned  to  live  at  home.    Since 
that date [the applicant] has been placed on convalescent leave awaiting the outcome of 
this  board.    On  1/4/XX  he  was  cleared  of  all  the  legal  charges  against  him  in  the 
preliminary hearing.  He has subsequently had no further domestic problems at home. 
 
On 1/13/XX [the applicant’s] Celexa was discontinued in favor of increasing his dosage 
of Effexor XR ….  … The Depakote was also discontinued due to persistent side effects of 
feeling tired and “blunted all the time”.  [Changes to medications were well tolerated by 
the applicant and he] has remained stable to the present day….  However, he continues 
to express irritability and  anxiousness about his inability to return to work, his chronic 
sense  of  inadequacy,  worthlessness  and  unhappiness,  his  financial  stressors,  and  the 
relational problems that exist [among certain family members].  His most recent Mental 
Status Exam is essentially unremarkable except for mild anxiousness in his mood and sad 
appearance.    His  affect  was  appropriate  to  content  but  with  a  limited  range.    He  was 
goal-directed,  logical,  sequential  and  coherent.    No  psychotic  symptoms  were  present.  
Cognitive exam was intact with good insight and judgment.  He expressed motivation to 
resolve  his  health  problems  but  had  little  confidence  in  his  doing  so  and  a  low  self-
esteem. 
 
With consideration give to this update, it is the opinion of this board that the diagnosis 
given in the original board be amended to:   

Axis I: 

 

Major  Depressive  Disorder,  recurrent,  without  psychotic 
features 
Obsessive-compulsive traits 

Axis II: 
Axis III: 
 

 
1.  Chronic prostatitis 
2. 

Sexual dysfunction secondary to prostatitis 

296.33 

 
 
 

The  prognosis  [for  the  applicant’s]  continued  military  duty  is  poor.    His  depressive 
symptomatology has remained resistive to multiple therapeutic modalities and it can be 
expected  that  he  will  continue  to  manifest  these  symptoms.    He  has  shown  recurrent, 
severe  decompensations  with  suicidal  ideation  in  response  to  psyc[h]osocial  stressors.  
Fortunately, he has always been able to show the good judgment and insight to not act 
on  those  impulses  but  to  seek  out  and  obtain  aid  in  overcoming  the  stressor  that  are 
precipitating  his  emotional  responses.    Due  to  this  member[‘]s  strengths  of  high 

 

 

intelligence, introspectiveness, and maturity his capacity for adjustment during periods 
of remission in the past have been excellent, unfortunately, he can no longer identify any 
time  periods  where  he  is  not  overwhelmed  by  his  depressive  symptoms  which  then 
impair  his  productivity.    His  rigidness  and  preoccupation  with  orderliness  and  control 
reinforce  his  difficulties  especially  in  new  environments  but  once  acclimated  and 
accepted into that new culture he has the capacity to be a valuable worker focused on his 
work  load  and  able  to  attain  an  acceptable 
  Further 
psychopharmocologic  and  [cognitive]  therapies  will  be  necessary  to  assist  him  toward 
the resolution of these difficulties.  I recommend that [the applicant] be discharged from 
the USCG due to his disqualifying disorder. 

  level  of  productivity. 

 
 
The CPEB, which convened on February 8, 19XX, found him not fit to perform 
the duties of his grade or rate under VASRD code number 9434, assigned him a thirty 
percent  disability  rating,  and  recommended  that  he  be  temporarily  retired.    On 
February  18,  19XX,  the  applicant  rejected  the  CPEB’s  recommended  findings  and 
requested an appearance before the Formal Physical Evaluation Board (FPEB).  
 
 
On  March  9,  19XX,  the  applicant  appeared  before  the  FPEB,  which  found  him 
unfit for duty due to a “major depressive disorder: occupational and social impairment 
with  decrease  in  work  efficiency.”    The  FPEB  rated  the  applicant’s  disability  at  thirty 
percent  under  VASRD  code  number  9434,  with  a  recommended  disposition  that  the 
applicant be permanently retired.  On March 16, 19XX, the applicant timely submitted a 
rebuttal, which indicated his non-concurrence with the rated percentage of disability. 
 
 
On  March  23,  19XX,  the  FPEB  notified  the  applicant  that  his  rebuttal  failed  to 
support a change to the FPEB’s findings and recommended disposition of his case.  On 
April 10, 19XX, the Physical Review Council (PRC) reviewed the applicant’s case and 
concurred with the findings and recommended disposition of the FPEB.  On April 12, 
19XX, the Commander of the Coast Guard Personnel Command (CGPC) approved the 
findings  and  recommendations  of  the  FPEB.    On  May  11,  19XX,  the  applicant  was 
retired from the Coast Guard, by reason of thirty percent permanent physical disability.  
At  the  time  of  his  retirement,  the  applicant  was  serving  in  the  grade  of  E-7  and  was 
credited with 13 years, 3 months, and 2 days of active duty service. 
 

VIEWS OF THE COAST GUARD 

 
 
On  October  15,  2002,  the  Chief  Counsel  of  the  Coast  Guard  submitted  an 
advisory opinion to which he attached a memorandum on the case prepared by CGPC.  
In  concurring  with  CGPC’s  analysis,  the  Chief  Counsel  recommended  that  the  Board 
deny the applicant’s request for relief. 
 
 
The Chief Counsel argued that the applicant’s allegation of Coast Guard error for 
its failure to apply the guidelines found in DOD Instruction 1332.39 is without merit, as 
that  instruction  has  “no  bearing”  on  the  Coast  Guard’s  medical  findings.    He  argued 

that the Coast Guard PDES relies solely on the rating formula contained in the VASRD 
for determining disability percentages. 
 
The  Chief  Counsel  alleged  that  the  applicant  failed  to  provide  any  persuasive 
 
evidence  that  the  PDES  committed  error  in  rating  his  medical  condition.    He  argued 
that the applicant’s allegation of error is unsupported by the record.  He contended that 
the  DOD  Instruction  1332.39  serves  only  to  supplement  the  terminology  used  in  the 
VASRD’s  rating  formula.    The  Chief  Counsel  argued  that  the  Coast  Guard  does  not 
consult or rely on DOD Instruction 1332.39 but rather relies solely on the rating formula 
contained in the VASRD.   
 
 
The Chief Counsel argued that the DVA’s subsequent finding that the applicant 
was one hundred percent disabled is not binding on the Coast Guard, nor indicative of 
differing  or  conflicting  medical  opinions.    He  stated  that  DVA  ratings  are  not 
determinative  in  military  disability  cases.    Lord  v.  United  States,  2  Ct.  Cl.  749,  754 
(1983).    He  argued  that  a  DVA  rating  determines  to  what  extent  a  veteran’s  earning 
capacity has been reduced.  He further argued that an armed forces rating, on the other 
hand,  determines  to  what  extent  a  member  has  been  rendered  unfit  to  perform  the 
duties of his grade or rating because of physical disability.  Id.  Therefore, he argued, 
the procedures and presumptions under the DVA evaluation process are fundamentally 
different and are not binding on the Coast Guard, according to the PDES.  As a result, 
he argued, the applicant has failed to prove by a preponderance of the evidence that the 
findings of the PDES were in error or unjust. 
 
 
The Chief Counsel argued that the evidence of record supports the thirty percent 
disability  rating  assigned  to  the  applicant.    He  contended  that  any  long-term 
diminution in the applicant’s earning capacity is properly a matter for the DVA, not the 
BCMR  or  the  Coast  Guard.    He  stated  that  in  the  absence  of  strong  evidence  to  the 
contrary,  Coast  Guard  officials  are  presumed  to  carry  out  their  duties  lawfully, 
correctly, and in good faith.  Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 
He  argued  that  because  the  sole  basis  for  a  physical  disability  determination  in  the 
Coast Guard continues to be unfitness to perform duty, the applicant has failed to show 
that the Coast Guard committed error or injustice by rating him with a thirty percent 
disability. 
 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On October 21, 2002, the Chair sent a copy of the views of the Coast Guard to the 
applicant  and  invited  him  to  respond  within  15  days.    On  November  8,  2001,  the 
applicant provided his response to the Board. 
 
 
The  applicant  argued  that  the  Coast  Guard’s  claim  that  it  looks  to  the  DOD 
Instruction  for  guidance  while  it  concurrently  adheres  to  the  rating  formula  in  the 

VASRD  yields  an  oxymoronic  interpretation  of  its  regulations,  which  may  lead  to 
abuse.   
 

The applicant acknowledged that a DVA disability rating is not the equivalent of 
a disability rating by the Coast Guard.  He argued that despite the difference between 
the  purposes  for  the  two  ratings,  “the  severity  of  the  depression  from  a  clinical 
perspective is the same under the VASRD for both the Coast Guard and the [DVA].”  
He  contended  that  by  definition,  the  applicant’s  condition  warrants  a  fifty  percent 
rating. 
 
The  applicant  argued  that  the  advisory  opinion  fails  to  support  the  Coast 
Guard’s  contentions  that  “the  evidence  in  the  record  supports  the  thirty  percent 
disability rating.”  He contended that the Coast Guard relies upon the presumption that 
officials  carried  out  their  duties  correctly  in  assigning  the  applicant  a  thirty  percent 
disability rating to avoid substantiating the rating in the applicant’s case.   

 
The applicant argued that the CGPC memorandum submitted as an attachment 
to  the  advisory  opinion  reveals  that  the  DOD  instruction  is  not  referred  to  at  all  for 
guidance.  He argued that the Coast Guard consequently appears to be unaware of the 
application of its regulations. 

 
The  applicant  questioned  the  suggestion  that  the  Coast  Guard’s  rating  of  the 
applicant  at  thirty  percent  disabled  worked  to  the  applicant’s  favor.    He  argued  that 
because  the  advisory  opinion  fails  to  analyze  or  outline  the  factors  which  require  a 
thirty percent rating, the Coast Guard has failed to rebut that he has demonstrated that 
the  diagnostic  criteria  necessary  to  satisfy  a  fifty  percent  disability  rating  exist  in  his 
case. 
 

APPLICABLE LAW 

 
Provisions of the PDES Manual (COMDTINST M1850.2B) 
 
 
The  PDES  Manual  governs  the  separation  of  members  due  to  a  physical 
disability.    Article  2.C.3.  requires  the  CPEB,  FPEB,  and  PRC  to  use  the  VASRD  in 
determining  the  percentage  of  disability,  the  diagnostic  code  number,  and  the 
diagnostic  nomenclature  for  each  disability.  Article  2.C.3.(3)(a),  entitled  “Unfit  for 
Continued Duty by Reason of a Physical Disability,” provides the following:   
 

If  the  board  finds  the  evaluee  unfit  for  continued  duty  by  reason  of  physical 
disability, the board shall make the finding ‘Unfit for Continued Duty.’  The board shall 
then make the following findings: 
 

(a)  propose  ratings  for  those  disabilities  which  are  themselves 
physically  unfitting  or  which  relate  to  or  contribute  to  the  condition(s)  that 

cause the evaluee to be unfit for continued duty. … In making this professional 
judgment,  board  members  will  only  rate  those  disabilities  which  make  an 
evaluee unfit for military service or which contribute to his or her inability to 
perform military duty. …  

 
 
Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), 
 38 CFR, Part 4 
 

Title 38, part 4.130, entitled “Schedule of ratings – mental disorder” provides that 
“[t]he nomenclature employed in this portion of the rating schedule is based upon the 
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition of the American 
Psychiatric  Association  (DSM-IV).    …”    This  CFR  part  also  sets  forth,  inter  alia,  the 
general rating formula for “major depressive disorder,” as follows: 
 

50%  Occupational  and  social  impairment  with  reduced  reliability  and  productivity  due  to 
such  symptoms  as:    flattened  affect;  circumstantial,  circumlocutory,  or  stereotyped 
speech;  panic  attacks  more  than  once  a  week;  difficulty  in  understanding  complex 
commands; impairment of short- and long-term  memory (e.g., retention of only highly 
learned  material,  forgetting  to  complete  tasks);  impaired  judgment;  impaired  abstract 
thinking;  disturbances  of  motivation  and  mood;  difficulty 
in  establishing  and 
maintaining effective work and social relationships. 

 

30%  Occupational  and  social  impairment  with  occasional  decrease  in  work  efficiency  and 
intermittent  periods  of  inability  to  perform  occupational  tasks  (although  generally 
functioning satisfactorily, with routine behavior, self-care, and conversation normal), due 
to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or 
less  often),  chronic  sleep  impairment,  mild  memory  loss  (such  as  forgetting  names, 
directions, recent events). 

 
 
Provisions of DOD Instruction 1332.39 
 
 
The  purpose  of  DOD  Instruction  1332.39  is  to  implement  policy,  assign 
responsibilities,  and  prescribe  procedures,  under  the  authority  of  DOD  Directive 
1332.18,  “Separation  or  Retirement  for  Physical  Disability,”  for  rating  disabilities  of 
Service members determined to be physically unfit and eligible for disability separation 
or retirement under Title 10 of the United States Code.  “The Instruction applies to the 
Office  of  the  Secretary  of  Defense  (OSD)  and  the  Military  Departments.”    Under  10 
U.S.C. 101, “military departments” are defined as Departments of the Army, Navy and 
Air Force.  The definition does not include the Department of Transportation. 
 
 
Attachment 1 to Enclosure 2 of DOD Instruction 1332.39 provides instructions for 
specific  VASRD  codes. 
to  Article  E2.A1.5.1.5.,  entitled  “VASRD 
Classification,” the VASRD uses specific terms to classify and rate a member’s level of 

  According 

social  and  industrial  impairment.    The  9000  Series  VASRD  Code,  such  as  VASRD 
diagnostic code number 9434, are further characterized by the following factors:  
 
Article E2.A1.5.1.5.3. 
Article E2.A1.5.1.5.3.1. 

inappropriate  affect,  dissociative 

Considerable at 50 percent 
Nearly  always  mentally  competent  to  handle  financial  affairs  and  to 
participate in PEB proceedings 
Overtly displays some signs or symptoms of mental illness such as: autism, 
ambivalence, 
thinking,  delusions, 
hallucinations,  hyperactivity,  depression,  lack  of  insight,  poor  judgment, 
bizarre  behavior,  disorientation,  emotional 
lability,  memory  defects, 
unfounded  somatic  complaints,  phobias,  compulsions,  decreasing  IQ,  and 
personality changes. 
Requires constant medications or psychotherapy. 
Suffers  extreme  job  instability  (not  due  to  substance  abuse,  economic 
conditions, personality disorders, etc.). 
Suffers  significant  industrially  related  social  maladjustment  (not  due  to 
substance abuse, economic conditions, personality disorders, etc.). 
May demonstrate a significant requirement for hospitalization. 

Article E2.A1.5.1.5.3.2. 

Article E2.A1.5.1.5.3.3. 
Article E2.A1.5.1.5.3.4. 

Article E2.A1.5.1.5.3.5. 

Article E2.A1.5.1.5.3.6. 

 

 
Article E2.A1.5.1.4.4. 
Article E2.A1.5.1.4.4.1. 
Article E2.A1.5.1.4.4.2. 
Article E2.A1.5.1.4.4.3. 
Article E2.A1.5.1.4.4.4. 
Article E2.A1.5.1.4.4.5 
 

Definite at 30 percent 
Does not demonstrate a significant requirement for hospitalization. 
Displays some signs or symptoms of mental illness on examination. 
Usually requires medication and/or frequent psychotherapy. 
May experience some job instability. 
Evidences borderline social adjustment. 

FINDINGS AND CONCLUSIONS 

 

1. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
§ 1552.  The application was timely. 
 
 
The applicant alleged that the Coast Guard failed to properly evaluate his 
case at the time he was permanently retired by assigning him a thirty percent disability 
rating  for  major  depressive  disorder.    In  February  19XX,  the  applicant’s  case  was 
referred  to  a  CPEB.    The  CPEB  reviewed  the  applicant’s  medical  records,  which 
documented that between 19XX and 19XX, he had multiple medical evaluations, which 
included  at  least  sixty  clinic  visits  and  five  hospitalizations  for  depression,  anxiety 
and/or  suicidal  ideation.    The  FPEB  and  the  PRC  concurred  in  the  rating  and 
recommended findings of the CPEB.  Upon the approval of the Commander of CGPC, 

2. 

3. 

the applicant was permanently retired on May 11, 19XX, with a thirty percent disability 
rating.   
 
The  applicant  has  shown  by  a  preponderance  of  the  evidence  that  the 
 
Coast Guard committed an error in assigning him a thirty percent disability rating for 
major  depressive  disorder.    According  to  the  PDES,  the  VASRD  is  the  standard  by 
which the CPEB, FPEB and PRC make proposed ratings for disabilities that cause the 
evaluee to be unfit.  PDES Manual, Article 2.C.3.(3)(a).  Under 38 CFR 4.130 (VASRD), a 
fifty  percent  disability  rating  for  major  depressive  disorder  is  applicable  when  a 
member’s  “occupational  and  social 
impairment  with  reduced  reliability  and 
productivity [are] due to such symptoms as: … disturbances of motivation and mood; 
[and] difficulty in establishing and maintaining effective work and social relationships.”   
 

4. 

On February 3, 19XX, a medical update report, in follow-up to the initial 
IMB,  was  completed  in  the  applicant’s  case.    The  Board  is  persuaded  that  the 
descriptions of the applicant’s symptoms and the status of his disability in the update 
report clearly meet the VASRD standard for his disability to be rated at fifty percent, 
instead of thirty percent.  According to the VASRD, a thirty percent disability rating for 
major depressive disorder is characterized by “occupational and social impairment with 
occasional decrease in work efficiency and intermittent periods of inability to perform 
occupational  tasks  …  due  to  such  symptoms  as:  depressed  mood,  [and]  anxiety  ….”  
The  examining  physician  for  the  updated  IMB  reported  that  “[the  applicant]  can  no 
longer  identify  any  time  periods  where  he  is  not  overwhelmed  by  his  depressive 
symptoms  which  then  impair  his  productivity.”    The  Board  finds  that  the  applicant’s 
social and occupational impairment clearly exceeds the thirty percent VASRD standard 
and  is  consistent  with  the  “reduced  reliability  and  productivity”  for  a  fifty  percent 
disability rating.  Furthermore, the Board notes that, while not a  medical  finding, the 
applicant’s officer-in-charge submitted a letter during the CPEB process, which stated 
that he “would not want [the applicant] working for [him] nor would [he] recommend 
[the applicant] to any other command in his current condition.” 
 

5. 

According  to  the  IMB  update  report,  the  examining  physician  also 
indicated that “[the applicant] continues to express irritability and anxiousness about … 
his chronic sense of inadequacy, worthlessness and unhappiness … and the relational 
problems  that  exist  [among  certain  family  members].”    Based  on  the  foregoing 
description  pertaining  to  the  applicant’s  condition,  the  Board  finds  that  the  applicant 
suffered  from  both  “disturbances  of  motivation  and  mood”  and  “difficulty  in 
establishing  and  maintaining  effective  …  social  relationships,”  as  listed  under  the 
VASRD rating for fifty percent.  Moreover, although portions of the IMB update report 
indicate  that  the  applicant  was  “logical,  sequential  and  coherent”  and  cognitively 
displayed  “good  insight  and  judgment,”  his  doctors  indicated  such  evidence  is 
reflective  of  the  applicant’s  ability  to  mentally  compensate  for  his  major  depression, 
because  of  his  “strengths  of  high  intelligence,  introspectiveness,  and  maturity  …,”as 

6. 

cited in the IMB medical update report.  Thus, contrary to the Coast Guard’s contention 
that the medical evidence supports the thirty percent disability rating, the Board finds 
that evidence in the medical record demonstrates that the applicant is entitled to a fifty 
percent rating for major depressive disorder. 
 
 
The  applicant  contended  that  the  Coast  Guard  erred  in  not  using  DOD 
Instruction  1332.39  in  rating  his  disability  at  the  time  he  was  permanently  retired.  
However,  under  the  facts  presented,  the  applicant’s  contentions  are  unsupported  by 
evidence showing that the Coast Guard was required to adhere to the DOD Instruction 
in rating his disability.  As stated by the Chief Counsel, DOD Instruction 1332.39 may 
be  used  as  guidance  to  supplement  the  terminology  used  in  the  VASRD’s  rating 
formula  when  processing  members  under  the  PDES.    Moreover,  as  set  forth  in  the 
Instruction’s  applicability,  the  Instruction  applies  to  the  Office  of  the  Secretary  of 
Defense and the Military Departments therein.  The Board therefore finds no evidence 
that  DOD  Instruction  1332.39  is  binding  on  the  Coast  Guard’s  disability  percentage 
determination.    However,  to  the  extent  that  the  Coast  Guard  uses  DOD  Instruction 
1339.32  to  “supplement  the  terminology”  for  impairment,  the  applicant’s  medical 
record establishes that he has suffered “recurrent, severe decompensations with suicidal 
ideation”  and  requires  “further  psychopharmocologic  and  [cognitive]  therapies.”  
Consequently,  the  applicant  has  persuaded  the  Board  that  he  should  have  been 
awarded  a  fifty  percent  disability  rating  under  the  applicable  language  of  Article 
E2.A1.5.1.5.3. of the Instruction. 
 

7. 

On February 27, 19XX, the DVA determined that the applicant was one-
hundred  percent  disabled  based  on  medical  examinations  held  in  May  and  June  of 
19XX and an examination of the same medical records considered by the Coast Guard.  
According  to  the  DVA  medical  report:    “An  evaluation  of  100  percent  is  assigned 
whenever  there  is  evidence  of  total  occupational  and  social  impairment,  due  to  such 
symptoms  as:    gross  impairment  in  thought  processes  or  communications;  persistent 
delusions  or  hallucinations;  grossly  inappropriate  behavior;  persistent  danger  of 
hurting  self  or  others;  intermittent  inability  to  perform  activities  of  daily  living 
(including maintenance or minimal personal hygiene); disorientation to time or place; 
memory loss for names of close relatives, own occupation, or own name.”  Although, 
the DVA report indicated that the applicant displayed “no disorganization of thinking,” 
it also specified that he “showed no lightening of affect at any point …”  The examining 
physician indicated in the DVA report that the applicant’s diagnoses made during his 
time  of  service  in  the  Coast  Guard  were  minimized  “possibly  in  reply  to  [the 
applicant’s] own request to continue his career and his reluctance to have to leave duty 
with the Coast Guard.”  The examining physician concluded that the applicant’s global 
assessment  functioning  should  be  placed  at  20,  “indicating  that  only  with  the  current 
medication is his suicidal ideation in remission,” and that without such medication, “he 
would  be  at  some  danger  of  hurting  himself  and  [that]  there  has  been  a  gross 
impairment of his ability to function as a result of his recurrent major depression.” 

8. 

 
 
The  applicant  was  examined  by  the  DVA  approximately  three  to  four 
months  after  the  IMB  update  was  completed  by  the  Coast  Guard.    While  the  IMB 
update report failed to indicate that the applicant was in persistent danger of hurting 
himself,  the  examining  physician  recognized  that  the  applicant’s  “depressive 
symptomatology has remained resistive to multiple therapeutic modalities and it can be 
expected that he will continue to manifest these symptoms. …[and that he] has shown 
recurrent, severe decompensations with suicidal ideations in response to psychosocial 
stressors  ….”    The  DVA  is  chartered  to  provide  medical  care  for  veterans  once  they 
leave active duty.  The applicant’s medical records indicated that his occupational and 
social impairments due to the symptoms of his major depression were severe enough to 
adversely  affect  his  civilian  employment,  as  they  similarly  affected  his  Coast  Guard 
duties.   
 

9. 

The receipt of a higher disability rating from the DVA does not prove that 
the  Coast  Guard  committed  an  error  or  injustice  by  assigning  a  lower  rating  in  the 
spring of 2000.  According to the PDES, DVA disability findings are not binding on the 
Coast Guard.  PDES Manual, Article 9.A.1.b.  The Court of Federal Claims has stated 
that “[d]isability ratings by the [DVA] and by the Armed Forces are made for different 
purposes.  The [DVA] determines to what extent a veteran’s earning capacity has been 
reduced as a result of the 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 
physical  disability.    Accordingly,  [DVA]  ratings  are  not  determinative  of  issues 
involved in military disability retirement cases.”  Lord v. United States, 2 Cl. Ct. 749, 
754 (1983).  However, in the applicant’s case, the timing and circumstances surrounding 
the one-hundred percent DVA disability rating are more consistent with a finding that 
the applicant’s condition warranted a fifty percent Coast Guard disability rating at the 
time he was permanently retired than with a finding of a lower disability rating.  
 
Therefore, in view of the fact the applicant has otherwise demonstrated by 
 
a  preponderance  of  the  evidence  that  he  is  entitled  to  a  fifty  percent  rating  for  major 
depressive disorder, the applicant’s request should be granted. 
 
 

10. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The  application  of  XXX  XXXXXX  X.  XXXXXX,  XXX  XX  XXXX,  USCG,  for  the 

His  record  shall  be  corrected  to  show  that  he  was  retired  by  reason  of  fifty 

The  Coast  Guard  shall  pay  him  any  sum  he  may  be  due  as  a  result  of  this 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Barbara Betsock 

 

 
 

 
correction of his military record is granted.   
 
 
percent permanent physical disability, instead of thirty percent. 
 
 
correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Harold C. Davis, M.D. 

 
 Cynthia B. Walters