DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-087 
 
 
   

 

 
 

FINAL DECISION 

 
Ulmer, Chair: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The application was dock-
eted on June 9, 2003, upon receipt of the applicant’s completed application and records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated March 25, 2004, is signed by the three duly appointed 

APPLICANT’S REQUEST  

 
The applicant asked the Board to correct his record by increasing his permanent 
 
disability  rating  from  10%  to  30%  and  transferring  him  to  the  temporary  disability 
retirement list (TDRL)1.   
 

The  applicant  enlisted  in  the  Coast  Guard  on  January  26,  1987.  He  was 
discharged  on  November  28,  2001,  with  a  10%  disability  rating  due  to  lumbosacral 
strain with characteristic pain on motion, for which he received severance pay.  At the 
time of his discharge he had 14 years, 10 months, and three days of active duty. 

 

 ALLEGATIONS 

                                                 
1  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 Evaluations Manual).   
 

 

The  applicant  alleged  that  he  should  have  been  discharged  with  a  higher 
disability rating than the 10% rating he received at the time of discharge.  He stated that 
on May 17, 2002, the Department of Veterans Affairs (DVA) rated his condition as 40% 
disabling under the Veterans Administration Schedule for Rating Disabilities (VASRD) 2 
code  5293  (Intervertebral  Disc  Syndrome)  based  on  the  same  medical  evidence  the 
Coast Guard used for its 10% disability rating under VASRD code 5295.   He asserted 
that the Coast Guard should have used VASRD code 5293 to rate his disability rather 
than 5295.  

 
According to the applicant, his back condition began in 1991 when a condenser 
fell on his back while working on a Coast Guard cutter.  In 1998 he had a spinal fusion 
to replace a destroyed disc and after a period of limited duty was found fit for full duty 
by the Central Physical Evaluation Board (CPEB)3 on January 12, 1999.  After his return 
to  full  duty,  he  was  assigned  to  a  cutter.    He  stated  that  during  this  assignment,  the 
pounding  of  15  to  29-foot  seas  against  the  cutter  caused  his  back  to  become  very 
painful.  He stated that in 2001 another CPEB determined that he was unfit for duty due 
to  lumbosacral  strain  with  characteristic  pain  on  motion  and  assigned  him  a  10% 
disability rating.    

 
The applicant alleged that he was not properly counseled about his choices with 
respect to the 2001 CPEB findings.  He stated that he did not believe the 10% disability 
rating was fair and sought advice on how to challenge it.  He stated that he was told 
that he could only challenge it if he came to Washington, D.C., which he was hesitant to 
do because of the September 11 disaster.  He said that he spoke to his assigned military 
counsel  by  telephone  and  was  told  that  "there  was  no  way  my  percentage  disability 
[rating] would be increased whether I flew to Washington, D.C. or not."  The applicant 
further  stated  that  the  lawyer  told  him  that  the  only  way  he  would  get  a  higher 
disability rating was "if [he] showed up in a wheel chair and could not walk."  He stated 
that he has subsequently learned that this advice was not accurate and has filed for a 
correction  of  his  military  record.    He  stated  that  he  would  like  "a  fair  chance  to  be 
medically  retired  after  almost  fifteen  years  of  dedicated  service  to  the  U.S.  Coast 
Guard."  
                                                 
2 Article 2.C.3.(3)(a) of COMDTINST M1850.2C states that the CPEB, FPEB and PRC will use the 
DVA Schedule for Rating Disabilities (VASRD), in determining the percentage of disability at 
the time of evaluation, the code number and the diagnostic nomenclature for each disability. 
 
3    The  CPEB  is  a  permanently  established  administrative  body  convened  to  evaluate  the 
following  on  the  basis  of  records  only:    a.  the  fitness  for  duty  of  active  duty  and  reserve 
members;  and  b.  the  fitness  for  duty  of  members  currently  on  the  [TDRL].    Article  4.A.1.  of 
COMDTINST  M1850.2C.  The  CPEB  also  recommends  rating  for  those  disabilities  which  are 
unfitting.   
   

 

SUMMARY OF THE RECORD 

 
The  applicant  first  injured  his  back  in  1991.    He  had  surgery  on  his  back  to 

 
 
replace a disc in 1998.  A CPEB found him fit for full duty in January 1999. 
 

According  to  a  medical  entry,  in  September  1999,  the  applicant  began  to 
experience back pain again while bending over to get a tool.  He sought treatment for 
the  back  pain  on  at  least  nine  occasions  from  September  1999  until  his  Physical 
Disability Evaluation System (PDES)4 processing (2001).  On several occasions, he was 
prescribed sick in quarters or light duty, in addition to medications and exercise.   

 
On  July  24,  2001,  approximately  two  years  after  the  1999  CPEB  returned  the 
applicant  to  full  duty,  a  new  Initial  Medical  Board  (IMB)  5  was  convened  to  examine 
and  evaluate  his  condition.    The  IMB  reported  that  according  to  the  applicant,  he 
continued  to  have  persistent  lower  back  pain  that  affected  his  ability  to  perform  his 
assigned Coast Guard duties.  The IMB further reported: 
 

According  to  a  review  of  the  health  record,  the  [applicant]  began 
complaining of worsening lower back pain and spasms in Sep[tember] 99.  
[He]  was  evaluated  by  CDR  [H]  .  .  .  at  ISC  Alameda  Health  Services 
Division  .  .  .  Jul[y]  00  and  was  diagnosed  with  chronic  lower  back  pain 
status post L5-S1 spinal fusion in April 98.  [The applicant] was referred to 
the  medical  center  at  Travis  AFB  for  follow-up.    He  was  evaluated  by 
Colonel  [S]  .  .  .  Weight  loss,  abdominal  strengthening,  stretching,  and 
avoidance of heavy lifting was recommended6.  Captain [S] [United States 
Air  Force]  evaluated  [the  applicant]  in  November  00  and  April  01  .  .  . 
where  consideration  of  a  medical  board  was  discussed.    [The  applicant] 
was evaluated by Ensign [J] PA-C [physician's assistant] initially April 01.  
He has continued to have persistent lower back pain that is, according to 
the [applicant], affecting his ability to perform his duties as a member of 
the Aids to Navigation team.  [The applicant] also states he has bilateral 

                                                 
4      The  PDES  exists  to  ensure  equitable  application  of  the  provisions  of  Title  10,  United  States  Code, 
Chapter  61,  which  relates  to  the  separation  or  retirement  of  military  personnel  by  reason  of  physical 
disability.    Its  components  are  the  Medical  Board,  Central  Physical  Evaluation  Board,  Formal  Physical 
Evaluation  Board,  Physical  Review  Counsel,  and  Physical  Disability  Appeal  Board.    See,  Chapter  1  of 
COMDTINST M1850.2C.   
 
5  An IMB is a written report of a medical board convened by other than the order of the president of the 
CPEB to evaluate a member's fitness for duty and to make recommendations consistent with the findings.  
Article 2.A.24 of COMDTINST M1850.2C.  
  
6   Colonel S also noted that the applicant's x-rays showed the lumbar fusion to be intact and the applicant 
was likely suffering from mechanical back pain.   

 

radicular pain of the lower extremities that does not extend past his knees.  
[The applicant] had been prescribed  . . . Elavil, Neurontin, Flexeril, and 
Percocet,  with  limited  success.  [The  applicant]  had  been  placed  [in  a 
limited  duty  status],  so  that  he  may  avoid  activities  that  aggravate  his 
lower back  . . . [with] no climbing, prolonged standing or walking, and no 
lifting.  

[The applicant] initially injured his back approximately 11 years ago.  He 
was diagnosed with symptomatic degenerative disc disease with annular 
tearing  at  the  L5-S1  level.    After  intensive  physical  therapy  and  activity 
modification without improvement, [the applicant] underwent an anterior 
spinal fusion procedure at the L5-S1 level with threaded bone dowels.  An 
[IMB]  was  convened  in  Oct[ober]  98  with  the  recommendation  of  fit  for 
limited duty for six months. 

 
 
The  2001  IMB  reported  that  the  current  physical  examination  revealed  that  the 
applicant was an alert, cooperative patient in no acute distress, with a normal gait.  His 
lower  back  was  tender  to  palpation  at  the  L5-S1  level,  and  the  applicant  had  limited 
range  of  motion  in  all  planes  due  to  lower  back  pain.    The  applicant  had  no  muscle 
spasms,  his  musculoskeletal  appearance  and  neurological  examination  were  normal, 
and his straight leg raise examination was negative. The IMB noted that there were no 
other disabilities and reported that radiological studies taken in July 2000 showed the 
bone  dowels  to  be  in  good  position  with  no  abnormality.    It  also  reported  that 
laboratory studies were all within normal limits.   
 
 
The  IMB  report  stated  that  the  applicant's  current  treatments  consisted  of 
modified activities, 10 mg Flexeril as needed for recurrent lower back spasms, and 200 
mg Celebrex daily.  The IMB stated that the applicant's prognosis was fair and that he 
would  not  return  fit  for  full  duty  or  be  fit  for  worldwide  assignment.    The  IMB 
recommended referral of the case to the CPEB, with the following diagnosis:   
 

 (1)  Lumbago      .  .  .  and  (2)  Status  post  Lumbosacral  fusion,  anterior 
technique . . . are correct and the patient is unlikely to return fit for full 
duty or be qualified for worldwide assignment.   
 
On August 16, 2001, the applicant signed a  statement that he did  not desire to 
submit  a  statement  in  rebuttal  to  the  findings  and  recommendations  of  the  medical 
board.  
 
On  August  16,  2001,  the  applicant's  commanding  officer  (CO)  wrote  an 
endorsement to the IMB, agreeing with it.  He stated that the applicant was not fit for 
full duty and had been performing only administrative duties.  He did not believe that 
the applicant would be capable of completing his duties as engineering petty officer on 

the aids to navigation team, which included boat crew/engineer, ATON technician with 
ability  to  climb  ATON  structures  for  servicing,  and  engineering  petty  officer 
responsibilities.      The  CO  opined  that  due  to  the  applicant's  current  condition,  his 
potential for further usefulness was not favorable.    

 
On October 2, 2001, the CPEB found that the applicant was unfit for continued 
active  duty  and  recommended  that  the  Commandant  discharge  him  with  severance 
pay.  The CPEB determined that the applicant was 10% disabled due to "Lumbosacral 
strain with characteristic pain on motion" (code 5295 under the VASRD). 

 
On October 10, 2001, the applicant accepted the findings of the CPEB and waived 
his right to a formal hearing before the Formal Physical Evaluation Board (FPEB).  On 
October 25, 2001, the Commandant approved the findings and recommendation of the 
CPEB and directed the applicant's  separation with  severance pay.  The applicant was 
separated on November 28, 2001.   

 
 
 
 
 

 

 

DEPARTMENT OF VETERANS AFFAIRS (DVA) 

The  applicant  received  a  40%  disability  rating  from  the  DVA  for  "status  post 
anterior  spinal  fusion,  L5-S1,  lumbar  spine."      The  DVA  rating  decision  offered  the 
following explanation:  

 
The service medical records show that on September 18, 1991, the veteran 
reported that he bent over and reached for a tool and felt a spasm in his 
lower  back.    The  pain  was  noted  as  a  constant  numbing  sensation  that 
runs  down  to  the  back  of  legs.    On  April  29,  1998,  the  veteran  had  an 
anterior  spinal  fusion  at  L5-S1.    After  the  back  surgery  the  veteran 
continued to complain of constant low back pain with occasional radicular 
shooting  pain  down  to  both  legs  and  to  his  knees,  including  numbness 
and tingling sensation to his right foot.  He was medicated  . . . He was 
diagnosed with chronic low back pain secondary to anterior spinal fusion, 
L5-S1.   
 
An evaluation of 40 percent is assigned under diagnostic code 5293 from 
November 29, 2001.  An evaluation of 40 percent is assigned for recurring 
attacks  of  severe  intervertebral  disc  syndrome  with  only  intermittent 
relief.  The 40 percent evaluation is assigned because the veteran continues 
to  experience  recurrent  back  problems  with  only  intermittent  relief.    A 

higher  evaluation  of  60  percent  is  not  warranted  unless  there  is 
pronounced  intervertebral  disc  syndrome  with  persistent  symptoms 
compatible with sciatic neuropathy, characteristic pain and demonstrable 
muscle  spasm,  absent  ankle 
jerk,  or  other  neurological  findings 
appropriate to site of diseased disc and little intermittent relief.   

 

VIEWS OF THE COAST GUARD 

 
 
On October 15, 2003, the Board received an advisory opinion from the office of 
the Judge Advocate General (TJAG).  He recommended that the applicant's request for 
relief be denied for lack of proof of error or injustice.  TJAG argued that the applicant 
has  failed  to  show  by  a  preponderance  of  the  evidence  that  that  the  Coast  Guard 
committed an error or injustice by rating his disability as 10% disabling. He stated that 
absent strong evidence to the contrary, it is presumed that Coast Guard officials carried 
out their duties lawfully, correctly, and in good faith.  Arens v. United States, 969 F. 2d 
1034, 1037 (D.C. Cir. 1990).   He stated that the applicant's mere assertion that he should 
have received a higher disability rating from the Coast Guard because the DVA rated 
him higher does not prove that the Coast Guard's rating is erroneous.   
  
 
TJAG  argued  that  the  DVA  findings  regarding  the  applicant’s  disabilities  have 
no bearing or legal effect on the Coast Guard’s medical findings.  In this regard, TJAG 
stated that the DVA determines to what extent a veteran’s civilian earning capacity has 
been  reduced  as  a  result  of  physical  disabilities.    In  contrast,  the  Coast  Guard 
determines if a member is unfit to perform his military duties and then rates the extent 
to  which  the  unfitting  medical  condition  prevents  the  member  from  performing  his 
duties.  He further stated as follows: 
 

The  procedures  and  presumptions  applicable  to  the  DVA  evaluation 
process  are  fundamentally  different  from,  and  more  favorable  to  the 
veteran  than,  those  applied  under  the  PDES  (Coast  Guard’s  Physical 
Disability  Evaluation  System).    The  DVA  is  not  limited  to  the  time  of 
Applicant’s  discharge.    If  a  service-connected  condition  later  becomes 
disabling, the DVA may award compensation on that basis.   The DVA's 
subsequent finding that the Applicant was 40% disabled isn't binding on 
the  Coast  Guard  nor  indicative  of  differing  or  conflicting  opinions 
between Coast Guard and DVA medical officials.  The sole standard for a 
disability determination in the Coast Guard is unfitness to perform duty    
.  .  .  In  any  event  any  long-term  diminution  in  the  Applicant's  earning 
capacity  attributable  to  his  military  service  is  properly  a  matter  of  the 
DVA, not the Coast Guard or the BCMR.   

 

 
Last,  TJAG  stated  that  the  applicant  was  afforded  all  of  his  due  process  rights 
with  respect  to  the  processing  of  his  case  through  the  physical  disability  evaluation 
system. 
 
 
TJAG  attached  comments  from  the  Commander,  Coast  Guard  Personnel 
Command  (CGPC)  as  Enclosure  (1)  to  the  advisory  opinion.    CGPC  stated  that  input 
was  obtained  from  the  Assistant  Senior  Medical  Officer  and  submitted  an  unsigned 
statement  purportedly  from  this  individual.    CGPC  summarized  the  medical  officer's 
input as follows: 
 

In my opinion [the applicant's] rating was consistent with our rating for 
the  [applicant]  who  had  back  surgery  to  remove  the  herniated  disc  and 
with minimal residual objective findings.  His physical exam on July 24 01 
noted normal gait, no muscle spasm, normal musculoskeletal appearance 
of  his  lower  extremity,  normal  neurological  exam,  straight  leg  raise 
examination  was  negative,  some  tenderness  on  L5-S1  level  and  had 
limited range of motion due to pain.  We do use code 5295  . . . if herniated 
disc is still present, pre or post operative. 
 
 
CGPC asserted that the CPEB was conducted in accordance with regulations and 
the applicant was provided with all of his due process rights.  He also stated that the 
Physical Evaluation Branch found that the use of VASRD 5295 by the Coast Guard was 
an  appropriate  exercise  in  judgment  because  medical  evidence  showed  that  the 
applicant  no  longer  suffered  from  a  herniated  disc.    CGPC  did  not  submit  a  signed 
statement from the individual offering this input.   
 
 
CGPC argued that the evidence does not support the applicant's allegation that 
he received poor advice from his counsel.  In this regard, he stated that the applicant's 
appointed counsel, with years of experience in advising members in the PDES process, 
provided the applicant a blunt, realistic appraisal of the possible outcome of his case if 
he did not accept the CPEB findings and recommendation.  He stated that the applicant 
exercised his right to accept or reject the lawyer's advice.   
 
 
 

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

 
 
On  October  30,  2003,  a  copy  of  the  Coast  Guard  views  was  mailed  to  the 
applicant  with  an  invitation  for  him  to  submit  a  response.    He  did  not  submit  a 
response. 
 

APPLICABLE LAW 

 

Disability Statutes 
 
 
Title 10 U.S.C. § 1201 provides that a member who is found to be “unfit to per-
form the duties of the member’s office, grade, rank, or rating because of physical dis-
ability incurred while entitled to basic pay” may be retired if the disability is (1) perma-
nent and stable, (2) not a result of misconduct, and (3) for members with less than 20 
years of service, “at least 30 percent under the standard schedule of rating disabilities in 
use by the Department of Veterans Affairs at the time of the determination.”  Title 10 
U.S.C.  § 1203  provides  that  such  a  member  whose  disability  is  rated  at  only  10  or  20 
percent  under  the  VASRD  shall  be  discharged  with  severance  pay.    Title  10  U.S.C. 
§ 1214  states  that  “[n]o  member  of  the  armed  forces  may  be  retired  or  separated  for 
physical disability without a full and fair hearing if he demands it.” 
 
Veterans Affairs Schedule for Rating Disabilities (38 C.F.R. part 4) 
 

VASRD code 5293 is for intervertebral disc syndrome.  For a 60% disability rating 
the  condition  is  pronounced,  "with  persistent  symptoms  compatible  with  sciatic 
neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, 
or  other  neurological  findings  appropriate  to  site  of  diseased  disc,  little  intermittent 
relief."  For a 40% disability rating, the condition is severe, with recurring attacks and 
with  intermittent  relief.    For  a  20%  disability  rating,  the  condition  is  moderate  with 
recurring  attacks.   A 10%  disability  rating  is  awarded  for  a  mild condition,  and  a  0% 
disability rating is awarded for a post-operative condition that is cured. 

 
VASRD  Code  5295  is  for  lumbosacral  strain.    For  a  40%  disability  rating  the 
condition  must  be  severe,  "with  listing  of  whole  spine  to  opposite  side,  positive 
Goldthwaite'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."  A 20% disability rating is 
awarded  for  lumbosacral  strain  that  includes  muscle  spasms  on  extreme  forward 
bending,  loss  of  lateral  spine  motion,  unilateral,  or  in  a  standing  position.    A  10% 
disability rating is awarded for lumbosacral strain with characteristic pain on motion, 
and  a  0%  disability  rating  is  awarded  when  only  slight  subjective  symptoms  are 
present.      
 

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  has  submitted  insufficient  evidence  to  prove  that  the  Coast 
Guard committed an error or injustice by rating his disability under VASRD code 5295 
rather than VASRD code 5293.  Nor has he submitted sufficient evidence to prove that 
his 10% disability rating from the Coast Guard should have been higher.   
 
 
4.  The  Coast  Guard  diagnosed  the  applicant's  permanent  disability  as 
lumbosacral  strain  with  characteristic  pain  on  motion  under  VASRD  code  5295  and 
rated his condition as 10% disabling.  In contrast, the DVA rated the applicant as being 
40% disabled for intervertebral disc syndrome7 under VASRD code 5293.   The fact that 
the DVA used a different code to rate the applicant's disability does not establish that 
the  Coast  Guard  committed  an  error  in  using  code  5295.    Nothing  in  the  Physical 
Disability Evaluations System (PDES) Manual requires the Coast Guard and the DVA to 
agree  on  a  common  VASRD  code  with  which  to  rate  a  disability.  Article  9.A.14  of 
COMDTINST  M1850.2C  (Physical  Disability  Evaluation  System  (PDES)  Manual) 
instructs participants in the PDES to use great care in selecting a member's VASRD code 
number  and  in  its  citation  on  the  rating  sheet.    There  is  nothing  in  the  record  that 
indicates such care was not exercised by the CPEB.     
 
 
5.    The  rating  of  the  applicant's  disability  under  different  codes  by  the  Coast 
Guard and the DVA only shows that there were two different professional opinions as 
to which code best described the applicant's permanent disability. The applicant has not 
presented  any  medical  opinions  or  pointed  to  anything  in  the  record,  other  than  the 
DVA rating decision itself, to prove that the Coast Guard's judgment in this matter was 
flawed.  Even if the applicant could prove that the Coast Guard should have rated his 
disability  under  VASRD  code  5293,  he  has  not  provided  persuasive  evidence  that  a 
Coast Guard rating under that code would have been higher than 10%.  The disability 
ratings under 5293 in 2001 were 0%, 10%, 20%, 40%, or 60%.   
 

6.  The Board, having determined that the applicant failed to prove that the use 
of  VASRD  code  5295  to  rate  his  disability  was  erroneous,  must  now  determine  if  the 
10% disability rating under this code is in error or unjust.  The 2001 IMB reported that 
the  applicant's  medical  examination  showed  a  limited  range  of  motion  due  to  lower 
back  pain  but  no  muscle  spasms,  and  his  straight  leg  raising  was  negative.    The 
examination  also  revealed  no  abnormal  musculoskeletal  appearance,  and  the 
neurological examination was normal.  Radiological studies taken in July 2000 showed 
the bone dowels to be in good position with no abnormality. The record supports the 

                                                 
7 For a 40% rating under code 9293 in 2001, the intervertebral disc syndrome must have been severe with 
recurring attacks and with intermittent relief. 

applicant's  10%  disability  rating  for  lumbosacral  strain  with  characteristic  pain  on 
motion at the time of discharge.  According to the VASRD, to qualify for the higher 20% 
disability rating under code 5295, the applicant must have exhibited muscle spasms on 
extreme bending and/or loss of lateral spine motion.  For a 40% rating he must have 
exhibited one or some of the following: "listing of the whole spine to the opposite side, 
positive Goldthwaite'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."  Nothing in the 
IMB report supports a 20% or 40% disability rating under code 5295. The DVA rating 
decision  contained  no  objective  findings  that  contradict  the  findings  of  the  IMB  and 
CPEB.  Therefore, the applicant has not presented sufficient evidence to show that the 
Coast Guard committed an error by assigning him a 10% disability rating at the time of 
his discharge.  

 
7.    Moreover,  error  is  not  established  because  the  Coast  Guard  rated  the 
applicant  differently  than  the  DVA.    This  Board  has  consistently  held  that  a  higher 
disability rating from the DVA does not alone establish that the Coast Guard committed 
an error or injustice by assigning a lower disability rating. In Lord v. United States, 2 Cl. 
Ct.  749,  754  (1983),  the  Court  of  Federal  Claims  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."   

 
8.    Importantly,  the  Board  finds  that  the  applicant,  after  consultation  with  a 
lawyer  assigned  to  counsel  him  on  whether  to  accept  or  reject  the  CPEB's 
recommendation, signed a statement accepting the CPEB's finding that he was unfit for 
continued  active  duty  and  should  be  discharged  with  severance  pay  due  to  physical 
disability  rated  at  10%  disabling.    The  applicant  also  waived  his  right  to  a  formal 
hearing  before  the  FPEB,  where  his  objection  to  the  CPEB  findings  could  have  been 
addressed  prior  to  his  discharge.  The  applicant  alleged  that  his  lawyer  erroneously 
counseled him that it would be fruitless to challenge the 10% disability rating and he 
relied on that advice. There is no other evidence in the record of what the lawyer told 
the applicant, but it is clear that the applicant accepted the findings of the CPEB and 
waived his right to an FPEB.  Absent persuasive proof of error or injustice, the Board 
will not disturb findings rendered by the Coast Guard. 

 

9.    The  applicant  received  all  due  process  to  which  he  was  entitled  under  the 
Physical  Disability  Evaluation  System  and  has  failed  to  prove  that  the  Coast  Guard 
committed an error or injustice in his case.   

 
10.  Since the applicant failed to prove he should have had a higher rating, the 
issue with respect to placing him on the TDRL is moot.  For placement on the TDRL, a 
member must have at least a 30% disability rating.  The applicant's disability rating is 
10%.   

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

 
 
 
 
 

The  application  of  formerXXXXXXXXXXXXXXXX,  USCG,  for  correction  of  his 

ORDER  

 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Philip B. Busch  

 

 

 

 
 
             Marc J. Weinberger 

 

 

 

 
             George A. Weller