DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 
 
    

 
 
 
BCMR Docket 
No.  2002-175 

  FINAL DECISION  

This  final  decision,  dated  August  XX,  2003,  is  signed  by  three  duly  appointed 

 
ULMER, Chair: 
 
 
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 September 30, 2003, upon 
the Board's receipt of the applicant's complete application for correction of his military 
record.  
 
 
members who were designated to serve as the Board in this case. 
 
 
The applicant asked the Board to correct his record to show that he was retired 
from the Coast Guard by reason of physical disability with a 30% disability rating, with 
back pay and allowances retroactive to the date of his separation by reason of physical 
disability with a 10% disability rating on September 20, 2001. He further requested, if 
retired, that he be reimbursed for all medical treatment, prescription drugs, and medical 
insurance expenses he has incurred since the date of his separation. 
 
 
The applicant requested in the alternative that his medical record be considered 
by  a  new  Central  Physical  Evaluation  Board  (CPEB)1  and  if  appealed  a  new  Formal 
Physical  Evaluation  Board  (FPEB)2,  which  excludes  as  a  member  any  Coast  Guard 
personnel  who  were  previously  members  of  a  CPEB  or  FPEB  that  considered  his 
disability rating.  He further requested that the new FPEB be directed to render written 
findings if it does not find him to be disabled by 30% or greater.  
 

                                                 
1   According to the PDES Manual (COMDTINST M1850.2C), the CPEB is a permanent 
administrative body convened to evaluate, on a record only basis, the fitness for duty of active 
duty, reserve members, and members on the Temporary Disability Retired List (TDRL).  
 
2   The FPEB meets to evaluate a case of an individual who has exercised the right to demand a 
formal hearing subsequent to the evaluation of the case by the CPEB, or upon a case in  which 
the CPEB could not unanimously agree.   
 

 
Prior to enlisting in the Coast Guard, the applicant served in the United States 
Marine Corps.  On April 7, 1992, he enlisted in the Coast Guard and served on active 
duty until May 5, 199x, the dated he was placed on the temporary disability retired list 
(TDRL)  3 with a 30% disability rating for pain and limitation of motion associated with 
degenerative disease of the cervical and thoracic spine.  After approximately three years 
on  the  TDRL,  he  was  removed  from  that  list  and  discharged  on  September  21,  2001, 
with a 10% disability rating for cervical degenerative disc disease characterized by pain 
on  motion.    The  FPEB  analogized  the  applicant's  cervical  degenerative  disease  to  a 
lumborsacral  strain  and  rated  the  disability  under  code  5299/5295  of  the  Veterans 
Affairs Schedule of Rating Disabilities (VASRD).4 
 

EXCERPTS FROM RECORD AND SUBMISSIONS 

 
 
The applicant alleged that the 10% permanent disability rating assigned to him 
by  the  FPEB  is  erroneous  and  that  his  condition  warrants,  at  a  minimum,  the  30% 
disability rating he held while assigned to the TDRL.  He alleged that the 10% disability 
rating was against the weight of the medical evidence.  In this regard, he argued that 
despite  medical  determinations  in  199x  and  200x  that  his  condition  was  unchanged 
from  1998  or  that  it  had  worsened  slightly,  the  CPEB  recommended  only  a  20% 
disability rating, and the FPEB recommended only a 10% disability rating.  He stated 
that  his  Coast  Guard  medical  record  was  not  available  for  the  members  of  the  FPEB 
who decided his case.  He complained that neither the CPEB nor the FPEB provided an 
explanation  of  their  findings  and  recommended  disposition,  as  required  by the PDES 
Manual.  
 
 
In addition the applicant complained that two members of the earlier CPEB that 
reviewed his disability case prior to placing him on the TDRL in 199x were on his May 
20, 200x FBEP, which determined his final disability rating. He further stated that the 
medical member of his FPEB was a pediatrician and had never examined or treated the 
applicant.    He  complained  that  FPEB  members  cross-examined  him  or  asked  him 
medical questions that he did not have the expertise to answer, turning the hearing into 
an adversarial proceeding in violation of the PDES Manual 
 
PHYSICAL DISABILITY EVALUATION SYSTEM  (PDES) PROCEEDINGS 
 
                                                 
3   The TDRL is a pending list of individuals whose disabilities are not permanent.  In order to 
be placed on the TDRL, the individual must have a disability that renders him or her unfit to 
perform  the  duties  of  his  or  her  office,  grade  and  rank, and the disability must be rated at a 
minimum  of  30%.    Temporary  disability  retired  pay  terminates  at  the  end  of  5  years.    See 
Chapter  8  of  COMDTINST  M1850.2C.  (Physical  Disability  Evaluation  System  [PDES] 
Manual)   
 
4   Section 9.A.7 of the PDES Manual states that " [w]hen an unlisted condition is encountered, 
rate the disability under a closely related disease or injury in which not only the functions but 
the anatomical localization and symptomatology are closely analogous." 
 

 
On  July  3  and  8,  199x,  a  Medical  Board  (MB)  met  and  determined  that  the 
applicant was not fit for duty.  It diagnosed the applicant as suffering from a painful 
chronic  thoracic  spine  and  a  painful  cervical  spine  dysfunction  "with  left  cervical 
radiculitis  (inflammation  of  the  nerve  root)  secondary  to  cervical  spine  spondylosis 
(degenerative spinal changes caused by arthritis) and degenerative disc disease."   The 
MB stated that the applicant was well until December 28, 1995 when he was sustained 
multiple  injuries  as  a  result  of  a  motor  vehicle  accident.    He  received  a  course  of 
treatment and on March 4, 199x, an MRI showed degenerative disc disease with bulging 
in the thoracic spine.  The report states that on April 20, 199x, the applicant complained 
that his pain had worsened because of the snow shoveling he was required to do by the 
Coast  Guard  at  that  time.    "X-rays  of  the  cervical  spine  from  18  March 199x revealed 
minimal  degenerative  changes  at  the  C5-6  level  with  no  radiological  evidence  of 
neuroforaminal encroachment."  An MRI of the cervical spine revealed a disc bulge and 
osteophytes  with  left  neuroforaminal  narrowing.    The  MB  contained  the  following 
description of the applicant's physical examination: 
 

The member presents as a 5'10" 200 pound . . . male in no acute distress.  
He  is  able  to  demonstrate  approximately  60  degrees  of  right  lateral 
rotation and 60 degrees of left lateral rotation.  The pain is referred to the 
base  of  his  neck  with  cervical  extension.    There  is  no  tenderness  to 
palpation  of  the  paracervical  musculature.    Deep  tendon  reflexes  are 
judged to be 1+ and symmetrical at the biceps, triceps and brachioradialis 
musculotendinous junctions.  There is no evidence of any motor deficit in 
the upper extremities.  There is no evidence of any sensory deficit in the 
upper extremities.  The member is able to demonstrate a normal gait and a 
normal heel/toe gait.  The member is able to forward flex so as to touch 
his  fingertips  approximately  7  inches  above  the  floor.    There  is  no 
discomfort  to  palpation  of  the  paralumbar  musculature.    Deep  tendon 
reflexes are 2+ and equal at the ankle and knees bilaterally.  There is no 
evidence of any sensory or motor deficit in the lower extremities.  Straight 
leg raise maneuver is felt to be negative bilaterally at 90 degrees in both 
the sitting and supine position.  There is a full painless passive range of 
motion of both hips and the leg lengths are felt to be equal. . . .   There was 
no evidence of cervical disc heniation.   
 
It is the opinion of the MB that conservative modalities such as physical 
therapy, NSAIDs, activity modification and Pain Clinic management will 
not  elevate  his  overall  cervical  and  thoracic  spine  function  to  a  level 
compatible  with  full  duty  in  the  US  Coast  Guard. 
  No  surgical 
intervention is felt to be indicated.    
 
 
On September 16, 199x, the applicant's commanding officer (CO) wrote that the 
applicant  was  not  qualified  to  perform  the  duties  associated  with  his  rate,  which  he 
described  as  follows:    "Provides  administrative  support  at  all  types  of  Coast  Guard 
units.  Counsels members on entitlements and prepares pay, travel, and other personnel 

related  documents.    Is  familiar  with  and  provides  routine  maintenance  to  the  Coast 
Guard  standard  workstation  and  associated  printers.    Prepares  correspondence  and 
directives  and  maintains  files  and  directive  libraries."    He  stated  that  the  applicant 
suffered from back pain and could not stay seated or stand in one position for very long 
without discomfort.   
 
 
On November 13, 199x, the CPEB recommended that the applicant be separated 
from the Coast Guard with a 20% combined disability rating for thoracic and cervical 
strain analogous to lumbosacral strain with characteristic pain on motion.  On February 
10, 199x, the applicant rejected the findings and recommended disposition of the CPEB 
and demanded a hearing before the FPEB. 
 
 
On March 31, 199x, the FPEB met and found the applicant unfit to perform the 
duties of his rate due to severe pain and degenerative disc disease of the thoracic and 
cervical spine and recommended that he be placed on the TDRL with a 30% disability 
rating.  On May 6, the Commander of the Coast Guard Personnel Command approved 
the applicant's placement on the TDRL.   
 
On  November  23,  199x,  the  applicant  underwent  his  first  TDRL  periodic 
 
examination.    The  medical  report  stated  that  the  applicant  had  been  employed  as  an 
auditor with the Department of Veterans Affairs (DVA) since being placed on the TDRL 
and had lost no time from work, except for medical appointments.  It further stated that 
the applicant "continued to complain of upper back pain with pain upon moving and 
bending,"  with  no  radicular  pain.    The  report  noted  that  the  applicant  complained  of 
numbness  in  his  small  and  ring  fingers.    The  medical  report  further  reported  the 
following: 
 

  * 

 

* 

The positive physical findings are full range of motion of his cervical spine 
with  no  tenderness  to  palpation  of  the  cervical  spine.    He  had  negative 
Apley's  compression  on  test  and  a  negative  distraction  test.    Upper 
extremity  range  of  motion  was  full  bilaterally.    He  had  profound 
anesthesia of his ring and small fingers on both the radical and ulnar sides 
with 2 point discrimination of greater than 20 mm.   
 
The remainder of his neurosensory examination was normal.  He had no 
tenderness to palpation of his thoracic spine or his paraspinous muscles.  
His  gait  was  normal  and  his  lower  extremity  exam  was  normal  both  in 
motor and sensory.  Range of motion of his lumbar spine was normal and 
cervical spine was normal.  Upper extremity exam was normal.   
 
The  [applicant's]  mental  status  examination  appeared  to  be  stable.    The 
patient does report, however, that he is taking a benzodiazepine under the 
direction  of  a  physician  for  anxiety  attacks  which  he  has  been 
experiencing since his discharge from the military. 
 

* 

 

 

It is the opinion of the examiner that the degenerative disc disease is still 
evolving as the patient continues to complain of pain in his thoracic spine.  
A recommendation can be made that final action on the periodic physical 
examination is not considered appropriate at this time.  Compared to the 
patient's  prior  condition,  it  appears  that  his  condition  has  remained 
relatively stable or is slightly worsening.   

 
 
On  May  3,  200x,  a  neurologist  examined  the  applicant  and  reported  that  MRI 
scans  showed  degenerative  changes  in  the  cervical  spine  "without  spinal  stenosis  or 
cord compromise."  He further stated the  following findings: 
 

On  examination  he  had  good  range  of  motion  of  his  neck  and  back.  
Straight leg raising is essentially negative.  He had excellent strength in all 
muscle  groups  in  upper and lower extremities with 1-2+ and symmetric 
biceps, triceps, knee and ankle jerks.  His toes are down going.  There is 
diffuse  decreased  pin  sensation  over  the  entire  left  upper  extremity  but 
not  over  trunk  or  other  extremities.    Vibratory  and  position  senses  are 
normal.    The  source  of  the  pain  is  most  likely  traumatic  degenerative 
arthritis  of  the  spine    .  .  .  I  could  find  no  convincing  neurology 
abnormalities  and  would  not  recommend  further  workup  of  the 
degenerative disease in his spine. 

 
 
On June 19, 200x, a letter report from a rehabilitation hospital doctor stated that 
the applicant "was reluctant to be on an aggressive pharmacologic regimen as he does 
not want to have any clouded thinking given that he is currently going to school to get 
an MBA as a certified public accountant."  The report noted that a neurosurgeon had 
not  recommended  surgery.    The  report  recommended  physical  and  occupational 
therapy for the applicant.  
 
 
On March 1, 200x, the applicant had his second TDRL periodic examination.  The 
medical report noted that the applicant was employed but had changed employers.  It 
also  noted  that  the  applicant  had  lost  no  significant  time  from  work  other  than  for 
medical  appointments  and  for  occasional  exacerbations  of  pain.    He  reported  the 
following physical examination findings: 
 

The  [applicant]  is  nontender  to  palpation  about  the  cervical  spine  in the 
posterior processes of the cervical, thoracic and lumbosacral regions.  He 
also denies any tenderness overlying the trapezius muscle and denies any 
pain with lateral flexion to either the right or left side.  He also denies pain 
with lateral rotation of the neck to the right side.  He complains of pain 
with  rotation  of  his  neck  to  the  left  and  this  pain  he  states  is  in  the  left 
shoulder  and  arm  distribution  in  a  broad  and  diffuse  pattern.      He  also 
states that there is pain with flexion of the neck when he naturally flexes 
forward.  This causes him to have shooting pain into several dermatomes 
in the left upper extremity including the C6, C7, C8, and T1 dermatomes 

of the left upper extremity including the hand, forearm, and upper arm.  
The  patient  also  states  that  he  has  less  severe  but  significant  pain  when 
extending  his  neck  backwards.    His  lumbosacral  spine  is  noted  to  be 
nontender  to  palpation  in  both  the  midline  as  well  as  the  paraspinal 
regions.  He has no costovertebral angle tenderness.  His straight leg raises 
are  negative  bilaterally  as  well  as  bilateral  upper  extremity  and  lower 
extremity motor strength being 5/5.  He has global deep tendon reflexes 
which  are  active  between  1+  and  2  and  symmetric  bilaterally.    He  had 
decreased sensation in the ulnar aspect of the forearm and the fourth and 
fifth digits of the left hand without any significant change from the 1999 
exam.    He  has  no  upper  extremity,  lower  extremity,  or  trunk  muscle 
wasting.  He also has no fasciculation[5] or clonus[6] on examination.  His 
Babinski  signs  [a  reflex  test  to  assist  in  diagnosing  injury  to  the  spinal 
cord] are negative.  He has negative Lasegue signs [test the flexion of the 
hip] a well as negative contralateral straight leg raise signs.  He is able to 
heel and toe walk without difficulties and he has normal gait. 

 
 
X-rays  were  taken  of  the  cervical  and  thoracic  spine  during  this  periodic 
examination.    The  x-rays  showed  decreased  disc  height  in  the  thoracic  spine  and 
degenerative  disc  disease.    The  doctor  offered  the  following  impression  of  the 
applicant's condition: 
 

changes,  no 

spine  with  mild  degenerative 

Cervical 
fractures, 
spondylolisthesis or dislocation.  Degenerative disc disease of the thoracic 
spine  also.    The  patient  also  has  significant  neurologic  deficit  of  the  left 
upper  extremity  which  is  without  change  from  the  previous  exam.    He 
also has back pain which is brought on by provocative maneuvers and this 
pain extends at time into the left upper extremity.   

 

The  doctor  determined  that  there  was  no  significant  change  in  the  applicant's 
degenerative disc disease from the earlier TDRL examination and that his condition was 
stable and a final determination could be made as to his disability.  He diagnosed the 
applicant  as  suffering  pain  syndrome  associated  with  degenerative  disc  disease  and 
neurologic deficit of the left upper extremity.   
 
On April 10, 200x, the CPEB convened and gave the applicant a 10% disability 
 
rating for slight limitation of motion of the cervical spine, 10% disability rating for mild 

                                                 
5      Fasciculation  is  defined  as  "a  small  local  contraction  of  muscles,  visible  through  the  skin, 
representing  a  spontaneous  discharge  of  a  number  of  fibers  innervated  by  a  single  nerve 
filament."  Dorland's Illustrated Medial Dictionary, 29th Edition, p. 654. 
 
6   Clonus is defined as "a continuous rhythmic reflex tremor initiated by the spinal cord below 
an area of spinal cord injury, set in motion by reflex testing."  Dorland's, p. 365. 
 

On April 26, 200x, the applicant rejected the findings of the CPEB and demanded 

incomplete  paralysis  of  the  left  ulnar  nerve,  and  a  0%  disability  rating  for  slight 
limitation of motion of the dorsal spine, for a combined 20% disability rating.   
 
 
a formal hearing before the FPEB.   
 
 
On May 25, 200x, the applicant's chiropractor submitted a report.  He stated that 
he began treating the applicant in December 1996 for moderate to severe neck and mid-
back pain.  He stated that the applicant's condition worsened when he aggravated his 
condition  shoveling  on  April  1,  1997.    He  stated  that  on  May  8,  200x,  the  applicant's 
limitation of motion and impairment was a low of 5% to a high of 40%.  He stated that 
the applicant was alert and cooperative and in some obvious distress with bending and 
rising from the examination table for which he required help.   
 
 
On May 28, 200x, the applicant's wife wrote a letter to the FPEB.  She stated that 
the applicant experiences severe limitation and pain that greatly impacts the quality of 
their lives.  She stated that the applicant "experiences severe pain when sitting for any 
length  of  time  where  his  back  and  neck  are  stationary  and  are  strained,  [and]  this 
requires him to take frequent breaks and restrict his travel."  
 
 
On  May  30,  200x,  the  FPEB  convened  to  hear  the  applicant's  case.    Civilian 
counsel  represented  him.    After  the  hearing,  the  FPEB  deliberated  and  found  the 
applicant to be fit for duty.   
 

 

On  June  14,  200x,  the  applicant  submitted  a  rebuttal  to  the  FPEB  findings  and 
recommendation, challenging the fitness for duty determination.  He also informed the 
board  that  he  was  being  treated  for  a  psychiatric  condition  and  kidney  stones.    A 
psychiatric clinical nurse specialist wrote a letter dated June 6, 2001.  She stated that she 
has  been  treating  the  applicant  since  November  1998  for  a  generalized  anxiety  and 
panic disorder.  "Despite some decrease in intensity and duration of panic attacks while 
on  Klonopin  the  attacks  have  not  been  totally  eliminated  .  .  .  [The  applicant]  has 
recently within the last month noted an increase in panic attacks . . . " 

 
The  applicant's  PDES  file  contains  a  statement  from  the  applicant's  civilian 
supervisor.  He stated that the applicant has needed many days of leave per month to 
cover required medical visits, treatments, and for bed rest due to medical problems.  He 
stated that the applicant takes frequent breaks during the work day to change positions, 
and that he has observed the applicant taking pain medication on a regular basis.  He 
stated that the applicant's job requires frequent travel, and after the travel he has seen 
the applicant suffering physically due to pain and limited motion.   

On July 3, 200x, the FPEB notified the applicant that his rebuttal did not cause a 
change  in  its  findings  and  recommended  disposition  and  that  his  case  would  be 
forwarded to the Physical Review Council (PRC)7  for review and processing. 
 
On  July  13,  200x,  the  PRC  returned  the  case  to  the  FPEB  noting  insufficient 
 
evidence  to  support  the  finding  of  fitness  for  duty.    On  August  10,  200x,  the  FPEB 
entered  new  findings  awarding  the  applicant  a  10%  disability  for  degenerative  disc 
disease  of  the  cervical  spine,  which  it  analogized  to  lumbosacral  strain  with 
characterized pain on motion.   It also awarded the applicant a 0% disability rating for 
minor neuralgia of the ulnar nerve. 
 
On  September  4,  200x,  the  Chief  Counsel  of  the  Coast  Guard  approved  the 
 
findings  and  recommended  disposition  of  the  FPEB.  On  September  14,  200x,  the 
Commander,  Coast  Guard  Personnel  Command  approved 
findings  and 
recommended  disposition  of  the  FPEB  and  directed  that  the  applicant's  name  be 
removed from the TDRL and that he be separated from the Coast Guard due to physical 
disability with severance pay.  On September 20, 200x, the applicant was notified that 
he  would  be  separated  from  the  Coast  Guard  due  to  physical  disability  with  a  10% 
disability rating. 

the 

 

Views of the Coast Guard  
 
 
On  February  28,  2003,  the  Board  received  an  advisory  opinion  from  the  Chief 
Counsel of the Coast Guard.  He recommended that the applicant's request be denied 
for lack of proof of error or injustice. The Chief Counsel stated that the applicant failed 
to prove by a preponderance of the evidence that the Coast Guard committed error or 
injustice  when  it  determined  that  the  applicant’s  physical  disability  rating  should  be 
10%.  He argued that the applicant has failed to provide sufficient evidence to overcome 
the  strong  presumption  of  regularity  afforded  the  military  officials  who  determined 
that the applicant’s physical disabilities justified a 10% disability rating.   
 
 
Attached to the advisory opinion as Enclosure (1) was a memorandum from the 
Commander,  Coast  Guard  Personnel  Command  (CGPC).    He  concluded  that  the 
medical evidence supported a 10% disability rating.  He further stated the following: 
 

The [FPEB] found that while the Applicant continued to suffer pain and 
physical  impairment  due  to  his  medical  condition  that  occasionally 
resulted  in  lost  time  from  work  and  other  activities,  he  held  full-time 
clerical employment that was comparable to the duties of a Coast Guard 
yeoman  and  completed  a  lengthy  daily  commute.    He  was  also  able  to 
complete an MBA while on the TDRL, a significant accomplishment.   
 

                                                 
7   The PRC reviews decisions by the CPEB and FPEB in which individuals rebut the findings or 
recommended dispositions of those boards.   
 

.  .  .  Placement  on  the  TDRL  does  not  guarantee  a  member  permanent 
disability retirement.  The TDRL is likened to a "pending list".  It provides 
a  safeguard  for  the  Government  against  permanently  retiring  members 
who  may  later  fully,  or  partially,  recover  from  the  disabling  condition.  
Conversely,  the  TDRL  safeguards  members  from  being  permanently 
retired  with  a  condition  that  is  not  stable  and  could  result  in  a  higher 
disability  rating.    The  applicant  was  placed  on  the  TDRL  with  a  30% 
disability  when  his  condition  was  found  disabling  but  was  not  stable.  
When  his  condition  was  found  to  be  stable,  final  action  concerning  his 
disability  was  appropriate.    I  disagree  with  his  claim  that  the  record 
supports a finding that the final evaluation of his condition showed that it 
was worse since his placement on the TDRL.  To the contrary, I find that 
the record showed that his condition had improved in respect to its effect 
on his ability to perform the duties of his rate.   
 
The  [applicant]  has  no absolute right to receive an amplifying statement 
on demand  . . . Presumably, the approving authority may also direct the 
[FPEB] to provide one after the fact, but did not do so in this case.   

The test for fitness for duty (FFD) is whether the person can perform all of 
the duties of his rank and rate.  COMDTINST M1850.2C. [PDES Manual] 
Section  2.A.15.  Once  a  finding  that  a  person  cannot  perform  all  of  the 
duties of his rank and rate, a finding of unfitness (NFD) is made, then the 
evaluator  (CPEB  or  FPEB)  refers  to  guidance  in  the  VASRD  or 

On  March  3,  2003,  the  Board  received  the  applicant's  reply  to  the  views  of  the 

 
Applicant’s Reply to the Views of the Coast Guard: 
 
 
Coast Guard.  He disagreed that his case should be denied.   
 
 
The applicant stated that the Coast Guard makes much of his job, commute, and 
schooling.  He stated, however, there is no statute or regulation that prohibits him or 
any  disabled  veteran  from  pursuing  those  activities.    On  the  contrary,  there  are 
Department  of  Veterans  Affairs  (DVA)  programs  that  encourage  disabled  veterans  to 
educate themselves, re-train for a job, and re-integrate into society, so that despite their 
disability, they can live as normal a life as possible.   
 
 
Applicant disagreed that his civilian employment duties are similar to those of a 
yeoman.    He  stated  that  yeoman  duties  go  far  beyond  those  of  secretarial  and 
administrative  functions  and  extend  to  sea duty, law enforcement, search and rescue, 
port  security,  facility  maintenance,  vessel  inspection,  and  military  readiness,  all  of 
which are part and parcel of Coast Guard military duty.   
 
 
The  applicant  stated  that  CGPC's  comment  --  the  applicant's  "condition  had 
improved in respect to its effect on his ability to perform the duties of his rate" --applied 
an incorrect standard.  He further elaborated: 
 

COMDTINST  M1850.2C.,  Chapter  9  for  the  criteria  for  assigning  a 
percentage  of  disability    .  .  .    These  are  two  (2)  separate  processes. 
COMDTINST M1850.2C, Chapters 2 and 9.   

 
The applicant disagreed that the Coast Guard was entitled to the presumption of 
 
regularity.    He  stated  that  the  Coast  Guard  offered  no  evidence  to  support  its 
entitlement to the presumption.  He noted the fact that the PRC returned the FPEB to 
the FPEB because its findings that the applicant was fit for duty was against the weight 
of the evidence.  He also argued that the FPEB failed to state the basis for finding the 
applicant fit for duty or for finding him only 10% disabled on remand.   
 
The applicant noted the Coast Guard's argument that his due process rights were 
 
not  violated  during  the  PDES  processing  of  his  case  despite:    1.  the  absence  of  his  
complete  medical  record  from  the  Board  room;  2.  the  adversarial  questioning  of  him 
during the FPEB hearing; 3.  two of the FPEB members having served on the applicant's 
first CPEB; 4. the decision of the FPEB against the medical opinion of its own doctor; 
and 5.  the failure of the FPEB to give any rationale for its decisions.  He argued that 
each of these items violated the Coast Guard's own regulations.    
 

FINDINGS AND CONCLUSIONS 

The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 

 
 
applicant's record and submissions, the Coast Guard's submission, and applicable law: 
 
 
United States Code.  The application was timely. 
 

1.    The  BCMR  has  jurisdiction  of  the  case  pursuant  to  section  1552  of  title  10, 

2.    The  applicant  requested  an  oral  hearing.    The  Chair,  under  section  52.31  of 
title 33, Code of Federal Regulations, recommended disposition on the merits without a 
hearing.  The Board concurred in that recommendation. 
 
 
3.    The  applicant  alleged  that  the  Coast  Guard  committed  an  error  and/or 
injustice  by  discharging  him  with  severance  pay  due  to  a  physical  disability  that  it 
considered to be 10% disabling.  Article 2.C.2.a of the PDES Manual states that unfitness 
to  perform  the  duties  of  one's  office,  grade,  rank  or  rating  due  to  disease  or  injury 
incurred  on  active  duty  shall  be  the  sole  standard  for  determining  a  retirement  or 
separation due to physical disability.  This provision further states, "Each case is to be 
considered  by  relating  the  nature  and  degree  of  physical  disability  of  the  evaluee 
concerned to the requirements and duties that a member may reasonable be expected to 
perform in his or her office, grade, rank or rating." 
 
 
4.    The  applicant  has  submitted  insufficient  evidence  to  show  that  the  Coast 
Guard committed an error or injustice when it determined that his back condition was 
only 10% disabling and his left ulnar nerve neuralgia was 0% disabling.  Although the 
Coast  Guard  uses  the  VASRD  to  rate  disabilities,  the  Court  stated  in  Lord  v.  United 
States,  2  Cl.  Ct.  749  (1983)  that  the  Armed  Forces  disability  ratings  are  based  on  the 

extent to which a member has been rendered unfit to perform the duties of his office, 
grade, rank, or rating because of physical disability.   
 
 
5.  The applicant's CO, in agreeing with the initial medical board, stated that the 
applicant was unfit to perform the duties of his rating due to pain, for which he took 
over the counter medications, and his inability to stay seated or to stand in one position 
for  a  long  time.    The  CO  described  the  applicant's  duties  as  mostly  administrative, 
which included the preparation of pay, travel, and other personnel related documents, 
provision of routine maintenance to computers and printer, and the maintenance of files 
and directive libraries. The physical requirements of the applicant's military duties are 
very  similar  to  those  the  applicant  performs  in  his  civilian  employment.    The  Board 
notes in this regard that he has held a fulltime job as an auditor since approximately the 
time  of  his  temporary  disability  discharge  from  the  Coast  Guard.    In  addition,  the 
applicant was able to earn an MBA while on the TDRL.   The Board finds persuasive the 
two TDRL periodic examination reports that indicate that the applicant has not lost any 
significant  time  from  work,  except  for  medical  appointments  and  occasional 
exacerbation of pain.  
 
6.  The  findings  of  the  last  periodic  examination  appear  to  support  the  FPEB's 
 
determination that the applicant suffered from cervical degenerative disease analogous 
to lumbosacral strain with characteristic pain on motion under code 5299/5295 of the 
VASRD.  The  diagnosis  of  the  final  TDRL  physician  was  mild  degenerative  disease  of 
the  cervical  spine,  also  of  the  thoracic  spine  noting  pain  with  movement.  An  earlier 
neurology  report  stated  that  the  source  of  the  applicant's  pain  was  most  likely 
"traumatic degenerative arthritis of the spine."  In addition, it was proper for the FPEB 
to  rate  the applicant's degenerative disc disease by analogy (lumbosacral strain) since 
the VASRD does not contain a listing for degenerative disc disease.    
 
7.    The  FPEB  finding  that  the  applicant's  condition  is  10%  disabling  under 
 
VASRD  Code  5295  is  reasonable.    The  criterion  for  a  10%  disability  rating  for  mild 
degenerative cervical disease analogized to lumbosacral strain is characteristic pain on 
motion.    The  orthopedist  who  performed  the  last  TDRL  periodic  examination  stated 
that the applicant has back pain that is brought on by provocative maneuvers and that 
extends  at  times  into  the  left  upper  extremity.  This  is  consistent  with  the  applicant's 
complaint of pain in his neck, left shoulder and arm with natural flexion of the neck and 
pain  when  extending  his  neck  backwards.    The  first  TDRL  physician  found  that  the 
applicant had full bilateral upper extremity range of motion, and although the applicant 
complained of pain, he had no radiculitis.   The neurologist reported that the applicant 
had  good  range  of  motion  of  his  neck  and  back,  with  the  MRI  scans  showing 
degenerative changes but no spinal stenosis (abnormal narrowing) or cord compromise. 
The  weight  of  the  medical  evidence  supports  the  FPEB  finding  that  the  applicant's 
disability met the criteria for a 10% disability rating. 
 
 
8.    The  medical  evidence  does  not  support  the  next  higher  rating  for  a  20% 
disability  under  Code  5295  because  the  applicant  did  not  have  muscle  spasms  on 
extreme bending or loss of lateral spine motion.  In fact, the last TDRL report stated that 

the  applicant  denied  pain  upon  lateral  flexion  to  either  the  right  or  left  side.      The 
medical  evidence  does  not  establish  that  the  applicant  suffered  any  fractures, 
spondylolisthesis8, or dislocation of the spine. The neurologist also stated that he could 
find  "no  convincing  neurologic  abnormalities  and  would  not  recommend  further 
workup of the degenerative disease in [the applicant's] spine."  Although the 199x MRIs 
showed some bulging in the thoracic and cervical spine, there was no indication that it 
involved  the  cord.  The  first  TDRL  periodic  examination  physician  stated  that  the 
applicant has full bilateral upper extremity range of motion.  To summarize, the Board 
is  persuaded  that  the  applicant's  10%  disability  rating  is  not  in  error  because  the 
applicant  has  been  able  to  work  fulltime  at  a  job  requiring  skills  and  physical  ability 
similar to that of a yeoman third class.   He has been able to go to school and study for 
an  MBA  presumably  while  holding  a  fulltime  job;  he  has  neck  pain  but  no  muscle 
spasms, fractures, spondylolisthesis, or dislocation of the spine.   
 
 
9.  The applicant makes much of the fact that he was placed on the TDRL with a 
30%  disability  rating,  which  he  alleged  should  be  maintained  as  his  permanent 
disability rating.   However, section 8.A.2. of the PDES Manual states that placement on 
the  TDRL  does  not  guarantee  a  member  permanent  disability  retirement.    Such 
placements protect the government from permanently retiring members who may later 
fully  or  partially  recover  from  disability  conditions,  and  conversely,  it  protects  the 
member from discharge or retirement when the condition is not stable and could result 
in a higher disability rating.  It was proper for the Coast Guard to remove the applicant 
from the TDRL once his condition had stabilized and to rate the disability based on the 
applicant's  current  status  and  level  of  disability.    See  section  2.C.3.a.  of  the  PDES 
Manual. There is no persuasive evidence in the record subsequent to the second TDRL 
examination that shows the Coast Guard's findings are in error.   
 
 
10.  The applicant received a 0% disability rating for minor neurolgia of the ulnar 
nerve. There is insufficient evidence showing that this disability rating is erroneous. In 
this  regard,  the  neurologist  stated  that  he  could  find  "no  convincing  neurologic 
abnormalities."    There  is  also  insufficient  evidence  in  the  record  that  the  applicant's 
anxiety  disorder  and  kidney  stones  contributed  to  his  unfitness  for  duty.    Section 
9.A.1.c.2.b.  of the PDES Manual states, "Conditions which do not render the member 
unfit  for  continued  service  will  not  be  considered  for  determining  the  compensable 
disability rating unless they contribute to the finding of unfitness."   
 
 
11.  Having two members on the 200x FPEB who also served on the 199x CPEB 
that placed the applicant on the TDRL appears not to have been a violation of the PDES 
Manual.  Section 5.A.4. of the PDES Manual states that a member of the CPEB may not 
serve as a member of the FPEB convened to hear the same case.  Placement on the TDRL 
and  the  determination  of  a  permanent  disability  rating  are  two  separate  processes, 
where the applicant is entitled to all due process rights that attach to each proceeding. 
 

                                                 
8 Spondylolisthesis is forward displacement of one vertebra over another.  Dorland's,  p. 1684.   

 
12.    The  applicant's  complaint  that  the  lack  of  an  amplifying  statement  by  the 
FPEB was a denial of due process is not established in this case.  The basis for the FPEB's 
decision in this case is apparent from the medical evidence submitted after applicant's 
placement on the TDRL.  The applicant suffers from cervical degenerative disease with 
pain on motion.   
 
 
13.  The Board notes the applicant's complaint that certain of the PDES members 
turned  the  PDES  hearing  into  an  adversarial  proceeding  by  asking  confrontational 
questions.    This  Board  does  not  equate  the  asking  of  difficult  and  pointed  questions 
with  an  adversarial  proceeding.    It  very  well  could  have  been  that  member's  way  of 
searching for the truth.   
 
 
14.    The  Board  notes  that  the  revised  FPEB  findings  and  recommended 
disposition that the applicant be discharged with severance pay due to a 10% disability 
were not referred to the applicant for a rebuttal.  It is not clear from section 5.D.2.C.(2) 
of the PDES Manual whether the FPEB was required to refer its revised findings to the 
applicant for a rebuttal.  This provision states that when the FPEB concurs in all or in 
part with the evaluee's rebuttal it shall prepare new findings and forward a copy to the 
evaluee and his legal counsel, after which the record is forwarded for review and final 
action.  However, the issue was not raised before this Board and we do not rule on it.  
 

15. The applicant has failed to prove by a preponderance of the evidence that the 
Coast  Guard  committed  an  error  by  assigning  him  a  10%  disability  rating  and 
discharging him from the Coast Guard with severance pay.  Absent clear evidence of 
error or injustice, the Board will not disturb findings rendered by the FPEB. 
 
 
 

16.  Accordingly, the applicant's request for relief should be denied 

 

ORDER 

 

The application of xxxxxxxxxxxxxx, USCG, for correction of his military record is 

 
 

 
denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Felisa C. Garmon 

 

 

 
 Quang D. Nguyen 

 

 

 
 G. Alex Weller