DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-133 
 
Xxxxxxxxxxxx 
  xxxxxxxxxxxxx 

 

 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
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 August 25, 2003, upon the BCMR’s receipt of the applicant’s military and medi-
cal records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  November  17,  2004,  is  signed  by  the  three  duly 

REQUEST FOR RELIEF 

 
The applicant asked the Board to correct his military record to show that he was 
 
medically retired from the Coast Guard, instead of being discharged with severance pay 
due to a 10% disability rating for hepatitis C virus (HCV).  
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that he was unjustly removed from the temporary disabil-
ity retired list (TDRL) and discharged with severance pay when he should have been 
medically retired from the Coast Guard.  He alleged while on the TDRL, Coast Guard 
doctors told him that he was cured and would never need treatment again.  Therefore, 
he  accepted  the  finding  of  the  Central  Physical  Evaluation  Board  (CPEB)  that  he  was 
only 10% disabled.  However, he is again disabled by HCV and undergoing treatment.  
 
 
The applicant alleged that he injured his back on two occasions while on active 
duty.  Once in 1995, while working on a helicopter, he fell 14 feet onto a concrete floor 
and was out of work for two months but returned to active duty with the help of physi-

cal  therapy.    However,  shortly  after  returning  to  active  duty,  an  aircraft  he  was  in 
crashed  and  he  incurred  severe  neck  and  back  injuries,  which  again  required  two 
months of rehabilitation before he regained his flight status.  He alleged that he was not 
given an MRI following either of these incidents. 
 
 
The applicant stated that during an annual flight physical examination in 1997, 
he was diagnosed with HCV of genotype 4-A, which is a Caribbean strand.  He stated 
that  he  probably  incurred  the  disease  in  1991  or  1992,  when  he  was  involved  with 
Operation  Haitian  Interdiction  Gitmo,  Cuba,  and  encountered  thousands  of  migrants 
during  interdictions  and  evacuations  of  overfilled  boats.    A  liver  biopsy  revealed 
bridging fibrosis and the beginning states of cirrhosis.  He was treated with Interferon.  
The  treatment  caused  him  to  lose  30  pounds,  turned  his  hair  gray,  and  gave  him 
migraine  headaches.    The  applicant  stated  that  during  this  period,  he  began  to  have 
severe neck and back pain and was referred for an MRI, which revealed multiple inju-
ries to his neck. 
 
 
Because of the side effects of the Interferon, an Air Force doctor put him on an 
experimental drug called Rebetron (ribavirin), but the side effects increased.  His skin 
toughened up like leather, and the injections became very painful.  However, after they 
discontinued  the  medication,  his  blood  “levels  began  to  rise  again.”    In  addition,  the 
medication left him with a thyroid disorder, no energy, and headaches. 
 
 
The  applicant  alleged  that,  thereafter,  he  returned  to  active  duty  for  about  a 
month although his condition had rendered him unable to fly.  He was placed on the 
TDRL with a 30% disability rating for HCV and a 0% rating for his neck injury, even 
though he wanted to stay on active duty.  Within two months of his temporary retire-
ment, the DVA found him to be 40% disabled.  He alleged that when the CPEB sepa-
rated him with only severance pay, he was told that it was his only option and that he 
would have to get his disability payments from the DVA.  The applicant alleged that he 
again began combination therapy for his HCV in July 2002. 
 
 
In support of his allegations, the applicant submitted a copy of a DVA medical 
record dated August 13, 2002, which shows that his active medical problems are HCV 
and a related mood disorder and adjustment reaction caused by his medical condition.  
The report indicates that he was 30% disabled by service-connected “residuals of hepa-
titis” and 10% disabled by a service-connected “spinal disc condition,” for a combined 
rating of 40%.  The report also indicates that since his discharge, he has been treated for 
both neck and back pain and HCV.   
 
 
The  applicant  also  submitted  a  copy  of  a  letter  from  his  wife,  who  stated  that 
because of the applicant’s condition, he lost his career in Coast Guard aviation and is 
now unable to get health insurance.  She also alleged that the applicant was told that, if 
he did not accept the severance pay from the CPEB, he would get nothing at all from 

 

the Coast Guard.  She stated that because of his treatment for HCV, he has not been able 
to work in two years.  A letter from the applicant’s mother contains similar information. 
 
The  applicant  also  submitted  a  copy  of  a  letter  from  M.H.,  who  stated  that  he 
 
himself has been rated as 100% disabled by the Department of Veterans’ Affairs because 
of his HCV.  
 

 

SUMMARY OF THE APPLICANT’S MEDICAL AND MILITARY RECORDS 

On August 29, 1989, the applicant enlisted in the Coast Guard.   He became an 

 
 
xxxxxxxxxxxxxxxxxx. 
 
 
On December 6, 1994, the applicant reported to a clinic complaining of back pain.  
He reported that he had fallen backward off a helicopter check stand onto concrete.  He 
was prescribed Motrin and placed on sick leave.  X-rays did not reveal any abnormali-
ties.  On January 25, 1995, shortly after his return to active duty, he reinjured his back 
during  a  “hard  landing”  of  an  aircraft.    He was  prescribed  Naprosyn  and  referred to 
physical therapy. 
 
 
On October 2, 1995, the applicant sought treatment for back pain.  He stated that 
he had suffered a “number of short bouts of pain” since his fall the previous year.  He 
was referred for physical therapy. 
 
 
On April 28, 1998, the applicant underwent a liver biopsy, which revealed “fea-
tures of chronic active hepatitis with patchy portal chronic inflammation and mild focal 
piecemeal necrosis.  Spotty parenchymal necrosis is seen as well.  The liver tissue shows 
focally increased periportal fibrosis with few portal areas showing definitive bridging.”  
The  applicant’s  diagnosis  was  “chronic  active  hepatitis,  mild  activity,  with  occasional 
bridging fibrosis.”1  The applicant was prescribed a course of Interferon treatment. 
                                                 
1 “Chronic active hepatitis” can be mild, moderate, or severe, but it is “recognized to be a progressive dis-
order that can lead to cirrhosis, liver failure, and death.” Braunwald, E., et al., eds., HARRISON’S PRINCIPLES 
OF INTERNAL MEDICINE, 15th ed. (McGraw-Hill, 2001), p. 1744.  “Classification of chronic hepatitis is based 
upon  (1)  its  cause,  (2)  its  histologic  activity,  or  grade,  and  (3)  its  degree  of  progression,  or  stage.    Thus, 
neither  clinical  features  alone  nor  hisologic  features—requiring  liver  biopsy—alone  are  sufficient  to 
characterize and distinguish among the several categories of chronic hepatitis.” Id. at 1742.  The cause of 
the applicant’s hepatitis is apparently the C virus.  “[T]he majority (almost 60%) of patients [with chronic 
HCV]  remain  asymptomatic  and  well  compensated,  with  no  clinical  sequelae  of  chronic  liver  disease.  
Overall then, chronic hepatitis C tends to be very slowly and insidiously progressive, if at all, in the vast 
majority  of  patients,  while  in  approximately  a  quarter  of  cases,  chronic  hepatitis  C  will  progress 
eventually to end-stage cirrhosis.”  Id. at 1747. 
 
“Grade, a histologic assessment of necroinflammatory activity, is based upon examination of the 
liver biopsy.  An assessment of important histologic features includes the degree of periportal necrosis and 
…  so-called  piecemeal  necrosis  or  interface  hepatitis);  the  degree  of  confluent  necrosis  that  links  or  forms 
bridges  between  vascular  structures  …  referred  to  as  bridging  necrosis;  the  degree  of  hepatocyte 
degeneration  and  focal  necrosis  within  the  lobule;  and  the  degree  of  portal  inflammation.  …  [The]  most 
popular  [of  scoring  systems]  is  the  numerical  histologic  activity  index  [with  a  maximum  score  of  22].  
Based on the presence and degree of these features of histologic activity, chronic hepatitis can be graded 
as mild, moderate, or severe.”  Id. at 1743. 
 
“The stage of chronic hepatitis, which reflects the level of progression of the disease, is based on 
the degree of fibrosis. … Staging is based on the degree of fibrosis as follows: 0 = no fibrosis; 1 = mild 
fibrosis; 2 = moderate fibrosis; 3 = severe fibrosis, including bridging fibrosis; 4 = cirrhosis.”  Id.   
 
“Perhaps the best prognostic indicator in chronic hepatitis C is liver histology.  Patients with mild 
necrosis and inflammation as well as those with limited fibrosis have an excellent prognosis and limited 

 

 
 
On September 10, 1998, a doctor reported that the applicant had been advised to 
stop  Interferon.    The  doctor  reported  that  the  applicant  was  a  “non-responder”  to 
Interferon because there had been no virologic response after approximately 15 weeks 
of treatment.  The doctor noted that the applicant would therefore begin “combination” 
therapy.    He  also  noted  that  the  applicant  had  lost  27  pounds  as  a  side  effect  of  the 
Interferon and that he should begin taking Zoloft because of depressive symptoms. 
 
 
On September 23, 1998, a gastroenterologist reported that the applicant had had 
a “partial response to Interferon monotherapy.”  He stated that since the applicant was 
“only 28 years old and he already has bridging fibrosis on liver biopsy, I think that we 
need to be as aggressive as possible in eradicating viremia in his case.  Clearly, the addi-
tion of ribavirin may be necessary in order to achieve a higher percentage of response.  
In  patients  who  have  previously  not  responded  to  Interferon,  combination  therapy 
achieves a sustained viral eradication in 15% of patients receiving the combination for 
six  months.”    The  gastroenterologist  stated  that  “[a]fter  three  months  of  combination 
therapy, hepatitis C virus RNA test should be done.  If this is negative, he should con-
tinue on combination therapy to complete a total of one year.”  He noted that he had 
discussed the side effects of the therapy with the applicant. 
 
 
Rebetron (ribavirin).  
 
On October 20, 1998, an Initial Medical Board (IMB) reported that the applicant 
 
was not fit for duty due to chronic active hepatitis C with bridging fibrosis, which did 
not exist prior to his enlistment.  The IMB report indicates that the applicant was well 
until  March  1998,  when  liver  function  tests  revealed  the  HCV.    Treatment  with  injec-
tions of Interferon began on April 22, 1998, and he “experienced debilitating side effects 
(headache,  myalgia,  and  marked  decrease  in  appetite)  coupled  with  absolute  neutro-
penia from the Interferon which limited his ability to work.”  The IMB report indicates 
that despite the treatment, “his viral load had not decreased appreciably.”  Therefore, 
on October 13, 1998, ribavirin was added to the Interferon injections.  Zoloft and Relafen 
were also prescribed for the applicant’s side effects.  The IMB reported that the appli-
cant was thus far tolerating the combination of medications and that his “white and red 
counts have stabilized and the liver function studies remain in the normal range save 
for  a  slightly  elevated  SGOT.  …  His  liver  is  not  enlarged  or  contracted  and  is  non-
tender to palpation.”  The IMB stated that the applicant should continue the combina-
tion treatment for six months to see if his viral load would decrease.  The IMB stated 
that the applicant’s prognosis is “guarded” and referred him to the CPEB.  On Novem-

In  October  1998,  the  applicant  began  combination  therapy  with  Interferon  and 

                                                                                                                                                             
progression to cirrhosis.  In contrast, among patients with moderate to severe necroinflammatory activity 
or fibrosis, including septal or bridging fibrosis, progression to cirrhosis is highly likely over the course of 
10 to 20 years.”  Id. at 1747. 

 

ber 16, 1998, the applicant indicated that he did not desire to rebut the IMB’s findings 
and recommendation. 
 
On November 5, 1998, a doctor noted that the applicant was suffering “numer-
 
ous  side  effects”  from  the  therapy,  including  arthralgias,  myalgias,  headaches,  and 
sleep disturbance.  
 
 
On November 6, 1998, the applicant’s  commanding officer (CO)  forwarded the 
IMB report to the Coast Guard Personnel Command (CGPC) with a cover letter noting 
that  the  applicant  had  been  “sick  in  quarters”  since  March  26,  1998,  was  medically 
grounded, and was so sick that he could not be used “in any capacity.” 
 
 
On December 3, 1998, a doctor noted that the applicant was suffering “significant 
side  effects,”  including  headaches,  myalgia,  agitation,  and  electrical  pain  down  the 
spine.  The applicant was also diagnosed with “Rebetron/[Interferon] induced depres-
sion.” 
 
 
On December 10, 1998, an MRI of the applicant’s cervical spine revealed “mini-
mal spondylosis” at his C4-5, C5-6, and C6-7 discs that did not result in significant nar-
rowing  of  the  central  canal  or  neural  foraminal.    In  addition,  a  “left  paracentral  disc 
protrusion” was found at C7-T1 without any deformity of the spinal cord or cord signal 
alteration. 
 
On December 22, 1998, the CPEB found that the applicant was 30% disabled by 
 
HCV and unfit to perform the duties of his grade.  The CPEB recommended that he be 
placed on the TDRL. 
 
 
On January 7, 1999, a doctor noted that the applicant had elected to stop combi-
nation  treatment  because  of  the  side  effects,  including  weight  loss,  myalgias,  arthral-
gias, pleuritic cough, and fatigue.  On January 15, 1999, a doctor noted that a hepatitis C 
virus  RNA  test  revealed  zero  virus,  which  indicated  that  he  was  responding  to  the 
combination therapy.   
 
On January 20, 1999, a Coast Guard attorney counseled the applicant about the 
 
results of the CPEB.  The applicant rejected the CPEB’s findings and recommendation 
and demanded a hearing before a Formal Physical Evaluation Board (FPEB). 
 
 
therapy.   
 
On January 28, 1999, a neurologist reported that the applicant had suffered inter-
 
mittent neck pain, scapular pain, and “sensory symptoms” in his left arm since falling 
off a helicopter in 1995.  The doctor noted that his nerve function was normal, but that 

On January 27, 1999, a doctor noted that the applicant had stopped combination 

 

On February 4, 1999, a doctor wrote the following in the applicant’s record: “Hep 

his range of motion was limited and that a cervical MRI showed “small left C6-T1 disc 
herniation not compressing spinal cord or spinal nerve root.”  He referred the applicant 
to a physiatrist and noted that surgery was not indicated. 
 
 
C—? remission.” 
 
 
On  February  5,  1999, the  applicant’s  CO  sent  CGPC  an  addendum  to  the IMB.  
The CO noted that the applicant was still unable to work.  The addendum states that the 
applicant  was  treated  for  three  and  one-half  months  with  a  combination  of  Rebetron 
and  Interferon  but  elected  to  discontinue  the  therapy  due  to  insomnia,  agitation, 
depression,  arthraligias,  and  myalgias.    The  addendum  also  stated  that  in  November 
1989, the applicant was evaluated for pain that “radiated from the lower cervical spine 
into his left medial scapula and down the radial surface of his brachium to the level of 
the elbow.”  Examination showed “persistent torticollis (chin pointed to the right),” and 
a “[c]ervical spine plain film revealed a mild retrolistheses at C6-7 that corrected with 
extension.  The x-ray report cited the torticollis and degenerative changes” at C6-7, and 
a “cervical MRI demonstrated the small paracentral disc herniation at the C7-T1 level.”  
The addendum noted that a neurosurgeon had recommended a non-surgical approach 
to treatment and referred the applicant to a physiatrist. 
 
 
On  February  18,  1999,  a  doctor  noted  that  the  applicant’s  side  effects  had  sub-
sided  but  that  tests  indicated  that  his  LFTs  had  risen  since  he  stopped  combination 
therapy.  The doctor stated that the applicant was a “Rebetron non-responder” either 
because the medication had failed or because the applicant had not taken the full treat-
ment course. 
 
 
tion therapy again and that there was no other option of therapy to offer him. 
 
On  March  16,  1999,  the  IMB  submitted  another  addendum.    It  states  that  on 
 
January 28, 1999, a neurosurgeon diagnosed the applicant with “C7-T1 disc herniation 
not compressing the spinal cord or spinal nerve root” and recommended physical ther-
apy.    The  addendum  also  noted  that  at  the  applicant’s  gastroenterologist  had  deter-
mined that the applicant was not responding to the combination Interferon/Rebetron 
treatment and agreed that it should be discontinued. 
 
 
On  March  31,  1999,  the  CPEB  amended  its  report  to  include  a  finding  that  the 
applicant was 0% (zero) disabled by “cervical strain analogous to lumbosacral strain,” 
as well as 30% disabled by HCV.  On April 6, 1999, the applicant was counseled on the 
amended report by a Coast Guard attorney, accepted the findings and conclusions, and 
waived his right to an FPEB.  The report was reviewed by the Chief Counsel on April 
15, 1999, and approved on April 21, 1999. 

On March 10, 1999, a doctor noted that the applicant would not begin combina-

 

On June 6, 1999, the applicant was temporarily retired on the TDRL after having 

 
 
completed nine years, nine months, and seven days on active duty.  
 
 
On December 14, 2000, the applicant underwent a periodic (18-month) physical 
examination  to  determine  whether  he  should  be  continued  on  the  TDRL,  returned  to 
active  duty,  or  separated.    The  doctor’s  report  states  that  the  applicant  had  declined 
pegylated  (PEG)  Interferon  therapy  due  to  his  past  experiences  with  both  Interferon 
and  combined  treatment.    The  doctor  wrote  that  the  applicant  “feels  well  [but  is] 
complaining of mild neck and lower back pain.  The patient has currently started a new 
business  approximately  four  months  ago  at  an  automotive  shop  …  .    The  patient’s 
appetite  is  currently  okay.    He  denies  any  nausea,  vomiting,  diarrhea  or  weight  loss, 
and  he  has  had  no  edema.    The  patient  self  discontinued  his  Levothyroxine  approx-
imately two weeks ago as he stated that it made him feel a little more tired than normal.  
The patient is currently without any other complaints at this time.”  The doctor noted 
that  the  applicant  had  “chronic  hepatitis-C  with  a  histologic  response  to  combination 
therapy, but the patient is unable to tolerate therapy long term due to side effects” and 
that he and another doctor had recommended a full year of treatment with pegylated 
Interferon  and  Rebetron.    However,  the  applicant  “is  not  agreeable  to  any  therapy 
because of the severe side effects previously experienced.  No other therapy is available 
for [him] at this time and consideration needs to be given by him to tackle this disease 
now  before  the  setting  of  cirrhosis  may  set  in  [sic].”    The  doctor  also  noted  that  the 
applicant had mild hypothyroidism, which “may require long term use of Levothyrox-
ine.”  The doctor stated that the applicant should “follow-up in January 2001 to discuss 
treatment again” and should have another liver biopsy within the following six months.  
There is no evidence in the record of another liver biopsy. 
 
 
On  January  17,  2001,  the  CPEB  found  the  applicant  to  be  just  10%  disabled  by 
“hepatitis infectious:  demonstrable liver damage” and recommended that he be sepa-
rated with severance pay.   
 
 
On January 31, 2001, a gastroenterologist noted that he had seen the applicant, 
who had a “history of hepatitis-C virus with Stage III disease by liver biopsy status post 
treatment with Interferon monotherapy for five months and combination therapy for six 
months.”  He noted that the genotype of the HCV was aggressive and that the appli-
cant, though then asymptomatic, had a “low viral load” and was “mildly hypothyroid,” 
which was “likely secondary to his Interferon therapy.”  The doctor prescribed medica-
tion for the applicant’s hypothyroidism and noted that he should begin treatment with 
pegylated  Interferon.    He  stated  that  the  applicant  had  previously  refused  to  try  the 
pegylated Interferon because it was experimental but had now agreed to try it because 
the Food and Drug Administration had recently approved it. 
 

 

 
On February 9, 2001, a Coast Guard attorney counseled the applicant about the 
CPEB’s report.  The applicant signed a form to accept the CPEB’s findings and recom-
mended  disposition  and  to  waive  his  right  to  a  hearing  before  a  Formal  Physical 
Evaluation Board (FPEB). 
 
 
On February 22, 2001, the Chief Counsel found that the CPEB’s report was tech-
nically  correct  and  supported  by  the  evidence  of  record.    On  February  23,  2001,  the 
CPEB’s  recommendation  was  approved,  and  on  March  5,  2001,  the  applicant  was 
removed from the TDRL and honorably discharged with severance pay. 
 
 
In  February  2002,  the  applicant  again  sought  treatment  for  HCV.    The  doctor 
noted that he had previously been offered treatment but refused it “because of his work 
situation.”  In July 2002, the applicant began combination therapy again.  He was also 
prescribed Wellbutrin and Clonazepam for depression.   
 
 
Notations in the applicant’s DVA record indicate that on August 13, 2002, he had 
a combined disability rating of 40%, including a 30% rating for “residuals of hepatitis” 
and a 10% rating for his “spinal disc condition.” 
 
 
On October 24, 2002, a doctor noted that the applicant “has genotype 4 hepatitis 
C with a high viral load, which is a difficult to treat hepatitis with a 40 to 50% chance to 
respond to a year of combination treatment.  He is on a waiting list for pegylated Inter-
feron and in the mean time he has been receiving Regular Interferon three times a week 
plus  Ribavirin  daily.    His  viral  load  12  weeks  into therapy  was  still  high,  making  his 
chances to respond to treatment poor.  He has significant side effects from the treatment 
consisting of fevers, nausea, vomiting, weight loss, muscle aches, transient leucopenia 
and depression. …  He has a firm resolution to complete therapy on the hope for a sus-
tained response even if his chances are limited, as he is young and has a family.”  The 
doctor noted that because the applicant’s viral load was still high, his “chances” would 
be low even with pegylated Interferon. 
 
 
On October 31, 2002, the applicant began taking pegylated Interferon.  On Janu-
ary 10, 2003, a doctor noted that the applicant’s viral load was still high after 30 weeks 
of combination therapy and 11 weeks of pegylated therapy.  The doctor noted that the 
applicant wanted to continue treatment even though the chance of success was only “1-
2%.”  In February 2003, the applicant “was discontinued from his treatment” because he 
was not responding to the therapy.  In April 2003, the applicant reported that the side 
effects of the drugs had diminished and that he was “doing much better.” 
 
 
Notations  in  the  applicant’s  DVA  record  indicate  that  by  February  4,  2004,  the 
applicant’s DVA combined disability rating had increased to 70%, including a 60% rat-
ing for “residuals of hepatitis” and a 20% rating for his “spinal disc condition.” 
 

 

VIEWS OF THE COAST GUARD 

On December 30, 2003, the Judge Advocate General (TJAG) of the Coast Guard 

 
 
recommended that the Board deny the applicant the requested relief. 
 
 
TJAG  alleged  that  in  2001  the  applicant  “was  afforded  full  due  process  rights 
and, with full advice of counsel, agreed with the Coast Guard’s rating of his disability.”  
Citing Lord v. United States, 2 Ct. Cl. 749, 754 (1983), TJAG argued that the fact that the 
DVA assigned the applicant a 40% combined rating “is not determinative of the same 
issues  involved  in  military  disability  cases”  because  “[t]he  DVA  determines  to  what 
extent a veteran’s earning capacity has been reduced as a result of specific injuries or 
combination  of  injuries,”  whereas  the  “Armed  Forces  …  determine  to  what  extent  a 
member has been rendered unfit to perform the duties of his office, grade, rank, or rat-
ing because of a physical disability.”  TJAG further argued the following: 
 

The procedures and presumptions applicable to the DVA evaluation process are funda-
mentally different from and often more favorable to the veteran than those applied under 
the PDES.  The DVA is not limited to the time of the Applicant’s discharge.  If a service-
connected condition later becomes disabling, the DVA may award compensation on that 
basis.    The  DVA’s  finding  that  the  Applicant  was  40%  disabled  is  not  relevant  to  the 
Coast guard’s finding that [he] was only 10% disabled at the time of his separation from 
the Coast Guard.  The sole standard for a physical disability determination in the Coast 
Guard is unfitness to perform duty. 

 
 
TJAG attached to his advisory opinion and adopted a memorandum on the case 
prepared by CGPC.  CGPC alleged that the applicant “was afforded his full due process 
rights” and that “not substantive administrative errors were made” in processing him 
under the PDES.  CGPC also alleged that “the medical findings and recommendations 
of each of the Applicant’s CPEBs were based on an appropriate evaluation of his medi-
cal condition and fitness for continued active duty.”  CGPC pointed out that the appli-
cant  accepted  the  findings  and  recommendation  of  the  final  CPEB  after  receiving 
“qualified legal advice.”  CGPC alleged that “[c]ontrary to the Applicant’s allegation, at 
no time was he ever counseled that his condition was ‘cured.’  In fact, during the Appli-
cant’s periodic examination on the TDRL … , it was [his] own characterization that he 
was doing well.  At the same time he was strongly advised that his failure to resume 
long-term  treatment  could  worsen  his  condition,  but  he  nevertheless  indicated  his 
refusal to do so.  Regrettably, since his removal from the TDRL, the Applicant’s reluc-
tance  to  accept  available  treatment  has  probably  contributed  to  the  worsening  of  his 
condition.” 
 
 
CGPC  stated  that  it  appears  from  a  letter  that  the  applicant  wrote  to  his  con-
gressman  on  August  6,  2002,  that  the  DVA  has  assigned  him  a  40%  disability  rating.  
CGPC  argued  that  the  DVA’s  40%  rating  reflects  the  DVA’s  evaluation  of  the  appli-

 

cant’s current employability, whereas the Coast Guard’s 10% rating reflects his fitness 
for duty at the time of his periodic examination on the TDRL. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  January  20,  2004,  the  BCMR  sent  the  applicant  a  copy  of  the  views  of  the 
Coast Guard and invited him to respond within 30 days.  The applicant was granted a 
180-day extension and responded on August 6, 2004.  The applicant stated that his cur-
rent DVA disability rating is not 40% but 80%.  He stated that at the time of the CPEB, 
he was very sick with severe side effects and that otherwise he would not have accepted 
the  findings.    The  applicant  stated  that  he  did  not  respond  to  Interferon/Rebetron 
therapy and that the side effects of the medications, from which he continued to suffer, 
had ruined his life. 
 
 
In support of his allegations, the applicant submitted copies of the DVA medical 
records dated February 4, 2004.  They indicate that the applicant suffers from a spinal 
disc condition with neck pain (rated at 20% disabling), “acute or unspecified hepatitis 
C” (rated at 60% disabling), and both mood and adjustment disorders due to his medi-
cal condition.  They also indicate that he was then being treated with pegylated Inter-
feron and ribavirin and was suffering the side effects of fatigue, weight loss, headaches, 
diarrhea, and occasional nausea and vomiting. 

 

APPLICABLE LAW 

Under  the  Department  of  Veterans’  Affairs  Schedule  for  Rating  Disabilities 

 
 
(VASRD), infectious hepatitis (code 7345) merits a  
 
•  100% disability rating when the veteran has “marked liver damage manifest by liver 
function test and marked gastrointestinal symptoms, or with episodes of several weeks 
duration  aggregating  three  or  more  a  year  and  accompanied  by  disabling  symptoms 
requiring rest therapy”;  
•  60%  rating  when  the veteran  has  “moderate  liver  damage  and  disabling  recurrent 
episodes of gastrointestinal disturbance, fatigue, and mental depression”;  
•  30%  rating  when  there  is  “minimal  liver  damage  with  associated  fatigue,  anxiety, 
and  gastrointestinal  disturbance  of  lesser  degree  and  frequency  but  necessitating  die-
tary restriction or other therapeutic measures”;  
•  10% rating if there is “demonstrable liver damage with mild gastrointestinal distur-
bance”; and a 
•  0% rating if the member is “healed [and] nonsymptomatic.” 
 

Article 3.F. of the Medical Manual (COMDTINST M6000.1B) provides that mem-
bers  with  medical  conditions  that  “are  normally  disqualifying”  for  retention  in  the 
Service shall be referred to an IMB by their commands.  Article 3.F.1.c. of the Medical 

 

Manual states that “[m]embers are ordinarily considered fit for duty unless they have a 
physical  impairment  (or  impairments)  which  interferes  with  the  performance  of  the 
duties of their grade or rating.  A determination of fitness or unfitness depends upon 
the individual’s ability to reasonably perform those duties.  Members considered tem-
porarily or permanently unfit for duty shall be referred to an Initial Medical Board for 
appropriate disposition.” 
 
 
The PDES Manual (COMDTINST M1850.2C) governs the separation of members 
due to physical disability.  Chapter 3 provides that an IMB of two medical officers shall 
conduct  a  thorough  medical  examination,  review  all  available  records,  and  issue  a 
report with a narrative description of the member’s impairments, an opinion as to the 
member’s fitness for duty and potential for further military service, and if the member 
is found unfit, a referral to a CPEB.  The member is advised about the PDES and per-
mitted to submit a response to the IMB report.  Chapter 3.I.7. of the PDES Manual pro-
vides  that  before  forwarding  an  IMB  report  to  the  CPEB,  the  member’s  CO  shall 
endorse  it  “with  a  full  recommendation  based  on  knowledge  and  observation  of  the 
member’s motivation and ability to perform” the duties of his grade or rating. 
 
 
Chapter 4 of the PDES Manual provides that a CPEB, composed of at least one 
senior  commissioned  officer  and  one  medical  officer  (not  members  of  the  IMB),  shall 
review  the  IMB  report,  the  CO’s  endorsement,  and  the  member’s  medical  records. 
Chapter  2.C.2.a.  provides  that  the  “sole  standard”  that  a  CPEB  or  FPEB  may  use  in 
“making  determinations  of  physical  disability  as  a  basis  for  retirement  or  separation 
shall be unfitness to perform the duties of office, grade, rank or rating because of dis-
ease  or  injury  incurred  or  aggravated  through  military  service.”    Chapter  2.C.2.a.(1) 
provides that before recommending that a  member be  separated or retired, the CPEB 
must find that the disability “is of a permanent nature and stable.”  Chapter 2.C.10.a.(2) 
provides that the CPEB or FPEB will consider a medical condition to be “permanent” 
when  “[a]ccepted  medical  principles  indicate  the  defect  has  stabilized  to  the  degree 
necessary  to  assess  the  permanent  degree  of  severity  or  percentage  rating”  or  if  the 
“compensable percentage rating can reasonably be expected to remain unchanged for 
the statutory five year period that the evaluee can be compensated while on the TDRL.” 
Chapter 2.C.3.a.(3)(a) provides that, if a CPEB (or subsequently an FPEB) finds that the 
member is unfit for duty because of a permanent disability, it will “propose ratings for 
those  disabilities  which  are  themselves  physically  unfitting  or  which  relate  to  or  con-
tribute to the condition(s) that cause the evaluee to be unfit for continued duty.”  
 

 
Chapters  4.A.13.a.  and  b.  provide  that  the  Commandant  shall  appoint  legal 
counsel to inform each member of the recommendation of the CPEB and to assist each 
member  in  responding  to  the  recommendation  by  advising  him  of  his  rights  and  the 
PDES.    Chapter  4.A.14.c.  provides  that  the  member  has  the  right  to  reject  the  CPEB’s 
recommendation  and  demand  a  formal  hearing  by  the  FPEB  in  accordance  with 
10 U.S.C. § 1214.  Under Chapter 4.A.14.d., the member must reject or accept the CPEB’s 

 

“offer” within 15 days of notification by the legal counsel.  If a member waives his right 
to  an  FPEB,  the  CPEB’s  recommended  findings  are  forwarded  to  the  Chief  Counsel’s 
office for a legal review and then to CGPC for final action. 
 
 
Chapter  8  of  the  PDES  Manual  governs  the  disposition  of  members  who  have 
been temporarily retired on the TDRL.  Chapter 8.A.6. provides that a member cannot 
stay on the TDRL, entitled to temporary disability retired pay, for more than five years.  
Chapter 8.C. states that members shall be periodically examined while on the TDRL to 
determine if their conditions have changed.  The examining physician’s report must be 
forwarded  to  the  Coast  Guard  Personnel  Command  (CGPC)  for  consideration  by  the 
CPEB.    Chapter  8.E.  provides  that  after  the  member’s  final  examination  while  on  the 
TDRL, a CPEB  will consider his case and make recommendations in accordance  with 
Chapter 2.C.3.c. as to his fitness for duty and his degree of disability for each permanent 
ratable, service-incurred medical condition.  Chapter 2.C.3.c. provides that when evalu-
ating a member on the TDRL, the CPEB will continue the member on the TDRL if the 
member’s condition has not stabilized.  Otherwise, the procedures prescribed in Chap-
ter 4 must be followed.    

 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 

1. 

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

§ 1552.  The application was timely. 

 
2. 

3. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair, 
acting pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 
 
 
The  preponderance  of  the  evidence  indicates  that  the  Coast  Guard  com-
mitted no errors with respect to the applicant’s processing under the PDES.  After being 
placed on the TDRL in June 1999 with a 30% disability rating, the applicant underwent 
a  periodic  physical  examination  approximately  eighteen  months  later,  in  December 
2000.  According to the doctor who conducted the examination, the applicant reported 
that he felt well, complained only of “mild neck and lower back pain,” and had recently 
started his own business.  On January 17, 2001, a CPEB reviewed his case and the report 
of the physical examination and concluded that his condition was sufficiently stable to 
justify removal from the TDRL and that his permanent disability rating from the Coast 
Guard  should  be  just  10  percent.    On  February  9,  2001,  the  applicant  was  counseled 
about the CPEB’s findings and recommendation by a Coast Guard attorney and signed 
a  form  to  accept  them  and  waive  his  right  to  a  hearing  before  an  FPEB.    The  record 

 

4. 

5. 

further  indicates  that  the  CPEB’s  findings  and  recommendation  were  reviewed  and 
approved in accordance with regulation.  Therefore, the Board concludes that the appli-
cant received all due process provided under the provisions of the PDES Manual. 
 
 
The applicant argued that his Coast Guard attorney erred on February 9, 
2001, by advising him to accept the CPEB’s findings and recommendation.  However, 
he  did  not  prove  that  his  attorney  advised  him  to  accept  the  CPEB’s  findings  and 
recommendation or, if the attorney in fact did so, that the advice was necessarily poor.  
Absent  evidence  to  the  contrary,  the  Board  must  presume  that  government  officials, 
including the applicant’s attorney, have acted “correctly, lawfully, and in good faith.”2  
The applicant failed to support his allegation with a statement from the attorney about 
the content of his counsel.  
 
The applicant alleged that he was misled into waiving his right to an FPEB 
 
because  his doctors erroneously told him that he was cured and  would not need any 
more treatment.  However, except for one notation in the record dated February 4, 1999, 
in which a doctor suggested that the applicant’s HCV might be in remission, the record 
indicates that the applicant’s doctors consistently advised him of the prognosis for his 
condition and continued to refer him to new therapies that might help his condition.  In 
fact, the doctor who examined the applicant in December 2000, prior to the final CPEB, 
noted that he had encouraged the applicant to try a new therapy but that the applicant 
was rejecting the advice.  Therefore, the Board finds that the applicant’s allegation that 
he only accepted the 10% disability rating and waived his right to an FPEB on February 
9,  2001,  because  he  had  been  misled  by  his  doctors  to  believe  that  his  condition  was 
cured and that he would not need new treatment is not credible. 
 
 
The  applicant  alleged  that  his  initial  40%  and  current  70%  combined 
disability ratings from the DVA prove that the 10% rating he received from the Coast 
Guard is erroneous.  The fact that the DVA assigned the applicant a higher disability 
rating does not prove that the Coast Guard’s rating was erroneous because the rating 
systems implemented by the DVA and the Armed Forces use different standards and 
serve  different  purposes.  The  DVA  periodically  evaluates  veterans  and  increases  or 
decreases their compensation to reflect the extent to which their civilian employment is 
currently  diminished  by  a  service-connected  disability,  whereas  the  Armed  Forces 
assign members a permanent disability rating at the time of their separation to reflect 
the extent to which they are deemed permanently unfit for duty because of a disability 
incurred during their service.3  
 
                                                 
2 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. 
Cl. 1979); 33 C.F.R. § 52.24(b). 
3 Lord v. United States, 2 Cl. Ct. 749, 754 (1983) (citing 38 U.S.C. § 355 (now 38 U.S.C. § 1155) for the pur-
pose of the DVA’s system and 10 U.S.C. § 1201 for the purpose of the Armed Forces’ system).  PDES Man-
ual, Article. 2-C-2.(b); Medical Manual, Article 3.F.1.c.  

6. 

 

7. 

9. 

8. 

 
The  record  indicates  that  the  applicant’s  HCV  is  expected  slowly  to 
worsen  and  could  result  in  cirrhosis  and  liver  failure.4    Under  Chapter  2.C.3.c.  of the 
PDES  Manual,  when  evaluating  a  member  on  the  TDRL,  the  CPEB  is  supposed  to 
continue the member on the TDRL if the member’s condition has not stabilized.  The 
word “stabilized” is not defined in the manual.  However, Chapter 2.C.10.a.(2) provides 
that the CPEB will consider a medical condition to be “permanent” when “[a]ccepted 
medical principles indicate the defect has stabilized to the degree necessary to assess the 
permanent degree of severity or percentage rating” or if the “compensable percentage 
rating  can  reasonably  be  expected  to  remain  unchanged  for  the  statutory  five  year 
period that the evaluee can be compensated while on the TDRL.”  Therefore and in light 
of the slow progression of most HCV cases and the fact that the applicant was refusing 
medical treatment, the Board finds that the CPEB did not err in finding that he could be 
removed from the TDRL and that his condition had stabilized sufficiently for the pur-
pose of assigning him a permanent disability rating. 
 
 
The  record  also  indicates  that  the  CPEB  assigned  the  applicant  a  10% 
rating in 2000 after having placed him on the TDRL with a 30% rating in 1999.  As there 
is no indication that the condition of the applicant’s liver had actually improved and the 
condition  of  most  HCV  patients’  livers  worsens  over  time,  this  decrease  in  disability 
rating seems anomalous.  However, members may not be placed on the TDRL with less 
than a 30% rating.  If in 1999 the CPEB thought that the applicant should be placed on 
the TDRL because his condition might change significantly within five years, it could 
not  assign  him  a  lower  rating  than  30%.    Therefore,  that  rating  does  not  necessarily 
reflect the degree to which the CPEB deemed the applicant to be permanently disabled 
in 1999.  Accordingly, the Board finds that the 30% temporary rating in 1999 does not 
prove that the 10% rating in 2001 was erroneous. 
 
 
Although the applicant has not proved that the Coast Guard erred in proc-
essing his case under the PDES or in providing him legal or medical advice, the Board is 
also authorized to remedy injustices in military records and must consider whether his 
10% disability rating and discharge with separation pay, in lieu of a medical retirement, 
“shocks  the  sense  of  justice.”5    The  record  indicates  that  the  applicant  has  a  form  of 
HCV  that  has  not  sustained  a  response  to  any  of  the  known  treatments  (Interferon, 
Interferon combined with Rebetron, and PEG) and that may progress slowly to cirrhosis 
of  the  liver  and  liver  failure,  which  would  require  a  transplant  to  prevent  death.  
Therefore, the Board must consider whether—despite the applicant’s voluntary accep-
tance  of  the  10%  rating  on  February  9,  2001—his  separation  with  severance  pay  on 

                                                 
4 Braunwald, E., et al., eds., HARRISON’S PRINCIPLES OF INTERNAL MEDICINE, 15th ed. (McGraw-Hill, 2001), 
pp. 1744, 1747.  
 
5  See  Reale  v.  United  States,  208  Ct.  Cl.  1010,  1011  (1976)  (holding  that  “injustice”  as  used  in  10  U.S.C. 
§ 1552(a) is treatment by military authorities that shocks the sense of justice but is not technically illegal). 

 

10. 

March  5,  2001,  constitutes  treatment  by  military  authorities  that  shocks  the  sense  of 
justice. 
 
The record indicates that up until 1998, the applicant’s HCV was asymp-
 
tomatic and was only revealed by blood tests and liver biopsy.  However, whenever he 
is in treatment, the side effects of the medicines render him quite ill.  At the time of the 
CPEB in January 2001, the applicant had started a new business and was feeling well 
again (except for mild back aches) because he had not accepted treatment for his HCV 
in  almost  two  years.    His  doctors  were  urging  him  to  renew  treatment,  however, 
because his liver condition was believed to be deteriorating.  The record also indicates 
that  the  Coast  Guard  did  not  conduct  another  liver  biopsy  to  determine  the  exact 
progress  of  the  applicant’s  disease  prior  to  the  CPEB’s  determination  on  January  17, 
2001.    The  applicant  knew  all  of  this  and  yet  still  accepted  the  10%  disability  rating 
offered by the CPEB.  As a result, the applicant currently receives all of his disability 
payments from the DVA instead of receiving part of them from the Coast Guard and 
part  from  the  DVA,  as  would  be  the  case  if  he  had  been  medically  retired  from  the 
Coast Guard.  
 

  
11. 

The two compensation schemes provided for by Congress under the DVA 
and the Armed Forces are not identical.  (For example, compensation from the DVA is 
tax exempt.)  For various reasons, some veterans prefer to receive compensation from 
one source over the other.  Although the applicant did not contest the CPEB’s findings 
and recommendation in February 2001, he apparently now believes that he would bene-
fit  if  he  were  entitled  to  receive  some  of  his  disability  compensation  from  the  Coast 
Guard, instead of from the DVA.  The circumstances of the applicant’s status in January 
2001, as described in finding 10 above, and the applicant’s belief that he would be better 
off with a medical retirement from the Coast Guard do not persuade the Board that the 
Coast Guard committed an injustice in discharging him with a 10% disability rating and 
severance  pay  or  that  his  receipt  of  disability  benefits  from  the  DVA  rather  than  the 
Coast Guard constitutes a significant injustice in his record. 
 
 
 

12.  Accordingly, the applicant’s request for correction should be denied. 

  

 
 
 
 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

ORDER 

The application of former xxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 

 

 

 

 

 
 Philip B. Busch  

 

 

 

 
 Harold C. Davis, M.D. 

 

 

 

 
 George A. Weller  

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
military record is denied.