DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-001 
 
 
   

 

 
 

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  October  1,  2004,  upon  receipt  of  the  applicant’s  completed  application  and 
military and medical records. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  9,  2005,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

The applicant asked the Board to correct his record to show that he was medi-
cally retired, rather than discharged, from the Coast Guard because of his physical dis-
ability on May 23, 2003.  He stated that after the Coast Guard discharged him with sev-
erance  pay  and  a  10%  disability  rating,  the  Department  of  Veterans’  Affairs  (DVA) 
awarded him a 60% rating for his service-connected disability.   

 

SUMMARY OF THE RECORD 

 
 
On March 23, 1999, the applicant enlisted in the Coast Guard.  During his pre-
enlistment  physical  examination  on  February  2,  1999,  the  examining  physician  noted 
that the applicant had moderate but asymptomatic pes planus (flat feet) and asympto-
matic  bilateral  bunions.1    The  examining  physician  also  noted  that  the  applicant  had 
                                                 
1  A bunion is an abnormal bony prominence on the head of the first metatarsal bone (the end closest to 
the big toe), which may cause a displacement of the toe.  DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 
29TH ED. (2000), p. 252. 

received an insurance settlement for a back injury following a motor vehicle accident in 
1998.  His medical records indicate that he was treated for lower back pain in 1998, but 
xrays and a CT scan of the back showed no evidence of disc herniation, and the appli-
cant denied any ongoing pain during his pre-enlistment physical examination.  
 
 
The  applicant’s  performance  record  includes  several  negative  administrative 
entries  about  poor  performance,  including  one  about  a  dishonest  attempt  to  remove 
negative entries from his unit record and to trick his Personnel Reporting Unit to follow 
suit with the PERSRU copy of his record.  He was counseled about his lack of initiative 
and  effort  several  times,  and  he  was  not  recommended  for  advancement  in  2001  and 
2002. 
 
 
On  April  27,  2001,  a  podiatrist  reported  to  the  applicant’s  command  that  the 
applicant “has severe hallux valgus with bunion deformity on both feet.  He has both a 
hypermobile and elevated first ray which is placing pressure on the second metatarsal 
head of both feet.  He also has plantar fasciitis which is due to his tight gastrocnemius 
muscle and severe pronated [flat]foot.”  The podiatrist stated that the applicant needed 
surgery and that the recovery period would be long.  
 

On June 6, 2001, the applicant underwent a bunionectomy, gastrocnemius reces-
sion, and first metatarsal osteotomy on his right foot.  On November 26, 2001, he under-
went the same or similar procedures on his left foot and removal of the surgical screw 
from his right foot. 

 
In March and April 2002, the applicant reported to his physical therapist that his 
feet became very sore when he had to stand for long periods at work or when playing 
golf.  On April 19, 2002, a podiatrist noted that the applicant continued to have pain and 
a  limited  range  of  motion  in  his  foot  following  his  surgeries  and  that  he  should  be 
referred to a medical board for evaluation. 
 
On June 3, 2002, the applicant’s physical therapist noted that the applicant could 
 
stand for between 20 and 40 minutes with foot pain that the applicant rated at about 3 
or 4 on a scale of 10 and that, if he stood for a longer period, the pain would worsen.  
On June 21, 2002, the applicant’s podiatrist reported that despite surgery and the use of 
orthotic footwear, the applicant would “probably always have an achy foot when he’s 
on his feet for long periods of time, standing on a steel [boat] deck.” 
 
 
On July 1, 2002, an Initial Medical Board (IMB) found that the applicant suffered 
from “status post lapidus bunionectomy right and left foot for hallux abductovalgus,” 
“plantar fasciitis, bilateral,” and “pes planus” and that each of these conditions existed 
prior to his enlistment but was aggravated by his military service.  The IMB reported 
that the applicant had not been fit for full duty since the first foot surgery in June 2001. 
It  described  his  condition  as  “right  antalgic  [modified  to  reduce  pain]  gait,  bilat[eral] 

healed scars in both feet, bilat[eral] limited range of motion MTP joint with hardware 
on left 1st metatarsal cuneiform, neurovascular exam intact.”  The IMB found that the 
applicant was not expected ever to be fit for full, unrestricted duty due to “status post 
lapidus bunionectomy right and left foot for hallux abductovalgus,” “plantar fasciitis, 
bilateral,”  and  “pes  planus”  and  recommended  that  his  case  be  referred  to  a  Central 
Physical Evaluation Board (CPEB). 

 
On July 21, 2002, the applicant’s physical therapist noted that despite a year of 
physical therapy, the applicant “continue[d] to complain of aching in both feet, though 
symptoms are improved with his recent job change, which requires less time spent on 
his feet.  Prognosis for further symptom relief and recovery in both feet is poor.”  She 
further stated that the applicant had “achieved maximal benefit from therapy” and that 
his prognosis would depend upon his future activities, such as his career choice, as “a 
job which requires prolonged standing will ensure no improvement in [his] symptoms 
and perhaps  worsen the situation.”  None of the physical therapist’s many reports in 
the record mention any complaint about back, arm, wrist, or hand pain. 
 
 
On August 20, 2002, the applicant was advised of the IMB’s findings and recom-
mendation.  He indicated that he would rebut them.  On September 4, 2002, he submit-
ted a rebuttal in which he stated that he felt his “back condition is adjunct to the bilat-
eral foot problems being reviewed” and that therefore his back condition should also be 
evaluated by the CPEB. 
 
On September 5, 2002, the applicant’s commanding officer (CO) forwarded the 
 
report of the IMB to the Coast Guard Personnel Command (CGPC).  He stated that he 
concurred with the IMB’s findings because the applicant “could not stand for prolonged 
periods and therefore could not perform his duties in the galley.”  
 
 
On October 11, 2002, the CPEB found the applicant to be 0% disabled by “flat-
foot,  congenital,  analogous  to  flatfoot,  acquired,”  under  diagnostic  code  5299/5276  of 
the  Veterans  Affairs  Schedule  for  Rating  Disabilities.    The  CPEB  also  found  that  the 
applicant had been 0% disabled by the condition when he enlisted and that the condi-
tion had not been aggravated by his military service.  The CPEB recommended that the 
applicant be discharged without severance pay. 
 
 
and was diagnosed with tinea versicolor (fungal skin infection). 
 
 
On  November  11,  2002,  the  applicant  underwent  an  evaluation  at  an  occupa-
tional medical center.  He was diagnosed with mild tinea pedis (athlete’s foot) and tinea 
versicolor.    The  doctor  noted  that  due  to  his  prior  foot  surgeries,  the  applicant  was 
“moderately limited because of limited function of the lower legs and ankles and limit-

On October 28, 2002, the applicant sought treatment for “splotches” on his skin 

ed range of motion, but is able to carry out normal activities of daily living without any 
trouble.” 
 
On  November  11,  2002,  the  applicant  underwent  an  audiological  examination.  
 
He complained of tinnitus lasting a minute or less a few times a month and difficulty 
following conversations.  The audiologist reported the applicant’s “hearing sensitivity 
to  be  essentially  within  normal  limits  for  both  ears  with  excellent  word  recognition 
ability.” 
 
 
On  December  11,  2002,  the  applicant  sought  help  for  “split  second  pain  [with] 
flexion at lower cervical [and] upper thoracic [and] lumbar areas” for about one month.  
He told the doctor that he had a history of lower back pain and had tried to resolve the 
problem with yoga and stretching exercises.  The doctor noted that the applicant had a 
full  range  of  motion  in  his  back  with  no  tenderness,  deformity,  or  neural  deficit.    He 
advised the applicant to lose weight, exercise, attend “back school,” and take Motrin for 
any pain. 
 
 
On December 19, 2002, the applicant’s podiatrist reported that the surgeries had 
been  successful  and  that  the  applicant  was  “stable  and  fixed.”    He  stated  that  it  was 
“difficult to tell if [the applicant’s foot problem was] a natural progression or if being on 
his feet for prolonged periods of time [as a cook for the Coast Guard] aggravated the 
pre-existing  condition  and  allowed  the  bunions  to  get  worse,  causing  pain  and  the 
necessity for surgery.” 
 
 
On  February  6,  2003,  a  hand  specialist  reported  that  the  applicant  had  sought 
treatment for pain in his knuckles and wrist, which he stated occurred “approximately 
three  times  a  week  after  using  his  hands  for  various  activities.”    Although  x-rays 
showed  no  abnormalities,  the  applicant  was  diagnosed  with  tendinitis  in  both  wrists, 
which “limits the use of his hands and fingers for fine manipulation.” 
 
On  March  18,  2003,  the  FPEB  recommended  that  the  applicant  be  discharged 
 
with severance pay due to “pes planus, congenital, analogous to pes planus acquired; 
moderate,”  under  VASRD  code  5299/5276,  which  it  found  to  be  10%  disabling.    The 
FPEB explained its finding as follows: 
 

Although  [the  applicant]  entered  the  Coast  Guard  with  Pes  Planus  and  Bunions,  there 
was no evidence presented that reflects its severity or the discomfort experienced prior to 
initial training and subsequent assignment to duties as a Food Service Specialist afloat.  It 
is clear that service in his rating aggravated this preexisting condition and that attempts 
to  correct  the  condition  through  manipulation  and  surgical  intervention  further  wors-
ened the symptoms. 

 

Also  on  March  18,  2003,  the  applicant  signed  a  statement  indicating  that  he 
would not submit a rebuttal to the FPEB’s report.  On April 18, 2003, the report of the 

FPEB  was  approved.    On  May  22,  2003,  the  applicant  was  discharged  by  reason  of 
physical disability with a 10% disability rating and severance pay. 
 
On June 6, 2003, the DVA awarded the applicant a combined 60% disability rat-
 
ing under the VASRD for service-connected disabilities retroactive to May 23, 2003.  The 
60% combined rating included 10% for left wrist tendinitis; 10% for right wrist tendini-
tis; 10% for “status post right foot surgeries” (VASRD code 5284); 10% for “status post 
left foot surgery” (5284); 10% for surgical scarring of his left lower extremity (7804); 10% 
for surgical scarring of his right lower extremity (7804); 10% for tinnitus; and 10% for 
tinea versicolor and tinea pedis.  
 

VIEWS OF THE COAST GUARD 

 

On  February  15,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 

submitted an advisory opinion in which he recommended that the Board deny relief.   

 
The  JAG  argued  that  the  “evidence  offered  by  the  applicant  is  insufficient  to 
overcome the presumption of regularity afforded to the Coast Guard.”  He stated that 
the DVA employs a different standard when assigning disability ratings and that there-
fore the 60% rating the applicant received from the DVA does not prove that the 10% 
rating he received from the Coast Guard was erroneous.  Lord v. United States, 2 Ct. Cl. 
749, 754 (1983).  “The DVA determines to what extent a veteran’s earning capacity has 
been  reduced  as  a  result  of  specific  injuries  or  combinations  of  injuries.    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 disabil-
ity.”  The JAG stated that the 10% rating was “based solely on the conditions that ren-
dered [the applicant] unfit for continued service at the time of his separation.”  PDES 
Manual, Art. 2.C.2.c.  The JAG argued that “any long-term diminution in the applicant’s 
earning capacity attributable to  his  military service is properly a matter for the DVA, 
not the Coast Guard or the BCMR.”  

 
The JAG based his recommendation on a memorandum on the case prepared by 
CGPC.    CGPC  argued  that  the  FPEB’s  findings  were  reasonable  and  appropriate  and 
that the applicant did not rebut them.  CGPC stated that the applicant “was afforded his 
full due process rights within the PDES process.” 

 
Regarding  the  discrepancy  between  the  DVA’s  rating  and  the  Coast  Guard’s 

rating, CGPC stated the following: 

 
The military services first determine unfitness for duty and then rate only the extent that 
the unfitting condition or conditions prevent the member from performing their duties.  
The VA ratings are based on an evaluation of the whole person, including the evaluation 
of the evaluee’s temporary employability status and earning capacity. 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On February 16, 2005, the Chair sent a copy of the views of the Coast Guard to 

the applicant and invited him to respond within 30 days.  No response was received.   
 

SUMMARY OF 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 schedule shall be discharged with severance pay.   
 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
 
Chapter 2.A.38. defines “physical disability” as “[a]ny manifest or latent physical 
impairment  or  impairments  due  to  disease,  injury,  or  aggravation  by  service  of  an 
existing  condition,  regardless  of  the  degree,  that  separately  makes  or  in  combination 
make a member unfit for continued duty.”   
 

Chapter 3 provides that if a member’s fitness for continued duty is in question, 
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  permitted  to  submit  a  response  to  the  IMB  report.    The 
member’s CO forwards the IMB report and any rebuttal to the CPEB with an endorse-
ment addressing the impact of the member’s disability on his performance of duty. 
 

Chapter 4 provides that a CPEB shall review the IMB report, the CO’s endorse-
ment, and the member’s medical records.  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 perma-
nent disability, it will  

 
propose ratings for those disabilities which are themselves physically unfitting or which 
relate to or contribute to the condition(s) that cause the evaluee to be unfit for continued 
duty.  The board shall not rate an impairment that does not contribute to the condition of 
unfitness or cause the evaluee to be unfit for duty along  with another condition that is 
determined  to  be  disqualifying  in  arriving  at  the  rated  degree  of  incapacity  incident  to 

retirement  form  military  service  for  disability.    In  making  this  professional  judgment, 
board members will only rate those disabilities which make an evaluee unfit for military 
service or which contribute to his or her inability to perform military duty.  In accordance 
with the current VASRD, the percentage of disability existing at the time of evaluation, 
the code number and diagnostic nomenclature for each disability and the combined per-
centage of disability will be provided. 

 

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.i. states 
that the “existence of a physical defect or condition that is ratable under the standard 
schedule for rating disabilities in use by the [DVA] does not of itself provide justifica-
tion  for,  or  entitlement  to,  separation  or  retirement  from  military  service  because  of 
physical  disability.    Although  a  member  may  have  physical  impairments  ratable  in 
accordance  with  the  VASRD,  such  impairments  do  not  necessarily  render  him  or  her 
unfit  for  military  duty.  …  Such  a  member  should  apply  to  the  [DVA]  for  disability 
compensation after release from active duty.”   

 
Chapter  2.C.3.a.(3)(a)1.  states  that  “[w]hen  rating  a  condition  which  does  not 
appear in the VASRD, the board shall rate by analogy.”  Chapter 9.A.7. states that when 
the VASRD does not list the member’s exact condition, the CPEB or FPEB should “rate 
the disability under a closely related disease or injury in which not lonely the functions 
but  the  anatomical  localization  and  symptomatology  are  closely  analogous.”    It  also 
states that when rating by analogy, the “diagnostic code number will be ‘built up’ by 
taking  the  first  two  digits  from  that  part  of  the  VASRD  most  closely  identifying  the 
system  of  the  body  involved.    The  last  two  digits  will  be  ’99,’  which  will  denote  an 
unlisted condition, followed by a slant bar and the diagnostic code number that is most 
closely related to the actual impairment.” 

 
Chapter 9.A.4. prohibits “pyramiding” as follows: 
 
a.  Pyramiding  is  the  term  used  to  describe  the  application  of  more  than  one  VASRD 
rating to any area or system of the body when the total functional impairment of that 
area  or  system  is  more  appropriately  reflected  under  a  single  diagnostic  code.  
Pyramiding is not permitted as it results in overrating the disability. 

 
b.  Disability  from  injuries  to  the  muscles,  nerves,  and  joints  of  an  extremity  may 
overlap  to  a  great  extent  …  .    Related  diagnoses  should  be  merged  for  rating 
purposes  when  the  VASRD  provides  a  single  diagnostic  code  covering  all  their 
manifestations.  This prevents pyramiding and reduces the chance of overrating.  For 
example, disability from fracture of a tibia with malunion, limitation of dorsiflexion, 
eversion, inversion, and traumatic arthritis of the ankle would be evaluated 5262 in 
accordance with the effect  upon ankle function with  no separate evaluation for  the 
limitation of motion or traumatic arthritis. 

 

  

Chapter 4.A.14.c. provides that if the member objects to a CPEB finding, he may 
demand  a  formal  hearing  by  the  FPEB,  where  he  may  be  represented  by  assigned  or 
private counsel.    Chapter 5.C.11.a. provides that the FPEB shall issue findings and a 
recommended  disposition  of  each  case  in  accordance  with  the  provisions  of  Chapter 
2.C.3.a.    The  applicant  may  submit  a  rebuttal  within  15  working  days,  and  the  FPEB 
must  respond  and,  if  indicated,  prepare  a  new  report.    The  FPEB’s  final  report  is 
reviewed for sufficiency by an officer at CGPC and by the Judge Advocate General, and 
forwarded to the Chief of the Administrative Division of CGPC for final action.   
 
VASRD (38 C.F.R. Part 4) 
 
 
Under  38  C.F.R.  § 4.1,  VASRD  ratings  “represent  as  far  as  can  practicably  be 
determined the average impairment in earning capacity” resulting from the disability.  
In addition, it provides that reratings may be required as a veteran’s physical condition 
and earning capacity diminish or improve. 
 
 
VASRD  code  5284,  which  was  used  by  the  DVA  to  rate  the  applicant’s  “status 
post left [and right] foot surgeries,” is a code for rating “foot injuries, other.”  The possi-
ble  ratings  are  40%  for  loss  of  foot,  30%  for  severe  foot  injuries,  20%  for  moderately 
severe, and 10% for moderate. 
 
 
VASRD code 7804, which was used by the DVA to rate the applicant’s “surgical 
scarring, left [and right] lower extremity,” is a code for rating “scars, superficial, tender 
and painful on objective demonstration.”  The only allowed rating is 10%. 
 
 
The  CPEB  and  FPEB  rated  the  applicant’s  condition  by  analogy  (5299)  to 
acquired flatfeet (VASRD code 5276).  The possible ratings are for bilateral flatfoot are 
50% when it is “pronounced; marked pronation, extreme tenderness of plantar surfaces 
of  the  feet,  marked  inward  displacement  and  severe  spasm  of  the  tendo  achilles  on 
manipulation,  not  improved  by  orthopedic  shoes  or  appliances”;  30%  when  it  is 
“severe;  objective  evidence  of  marked  deformity  (pronation,  abduction,  etc.),  pain  on 
manipulation and use accentuated, indication of swelling on use, characteristic callosi-
ties”;  10%  when  “moderate;  weight-bearing  line  over  or  medial  to  great  toe,  inward 
bowing of the tendo achilles, pain on manipulation and use of the feet”; and 0% when 
“mild; symptoms relieved by built-up shoe or arch support.” 
 

Title 38 C.F.R. § 4.14, titled “Avoidance of Pyramiding,” states that the “evalua-

tion of the same disability under various diagnoses is to be avoided.” 

 

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. 

The  Board  begins  each  case  presuming  that  the  applicant’s  military 
records  are  correct  and  that  Coast  Guard  officials,  including  his  doctors  and  medical 
evaluation boards, have acted correctly and in good faith in assigning his.2  Although 
prior to his discharge, the applicant did not rebut the FPEB’s recommendation that he 
be discharged with a 10% disability rating and severance pay, he now alleges that the 
10% disability rating he received from the Coast Guard was erroneous and pointed to 
his 60% combined disability rating from the DVA as evidence of the alleged error.  The 
record  indicates  that  the  applicant’s  60%  combined  disability  rating  from  the  DVA 
includes 10% for left wrist tendinitis; 10% for right wrist tendinitis; 10% for “status post 
right foot surgeries”; 10% for “status post left foot surgery”; 10% for surgical scarring of 
his  left  lower  extremity;  10%  for  surgical  scarring  of  his  right  lower  extremity  (7804); 
10% for tinnitus; and 10% for tinea versicolor and tinea pedis. 

 
3. 

Under  Chapter  2.C.3.a.(3)(a)  of  the  PDES  Manual,  the  CPEB  and  FPEB 
may  rate  only  “those  disabilities  which  are  themselves  physically  unfitting  or  which 
relate to or contribute to the condition(s) that cause the evaluee to be unfit for continued 
duty.  The board shall not rate an impairment that does not contribute to the condition 
of unfitness or cause the evaluee to be unfit for duty along with another condition that 
is determined to be disqualifying in arriving at the rated degree of incapacity incident 
to retirement form military service for disability.  In making this professional judgment, 
board  members  will  only  rate  those  disabilities  which  make  an  evaluee  unfit  for 
military  service  or  which  contribute  to  his  or  her  inability  to  perform  military  duty.”  
Although the applicant’s medical records contain diagnoses of tendinitis, tinnitus, tinea 
versicolor, and tinea pedis, there is insufficient evidence in the record for the Board to 
conclude  that  these  conditions  actually  interfered  with  his  performance  of  duty  or 
contributed to his unfitness for duty at the time of his discharge.  Therefore, the Board 
finds  that  the  applicant  has  not  proved  that  the  FPEB  committed  error  or  injustice  in 
failing to rate them. 

 
4. 

Although the DVA did not assign the applicant a disability rating for back 
pain, the Board notes that in his rebuttal to the IMB, the applicant complained of back 
                                                 
2  33  C.F.R.  § 52.24(b).    See  Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed.  Cir.  1992);  Sanders  v.  United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979) (holding that “absent strong evidence to the contrary,” government 
officials are presumed to have acted “lawfully, correctly, and in good faith”). 

ache  and  asked  that  it  be  rated  along  with  his  foot  problem.    Although  his  medical 
records indicate that the applicant complained of back pain in December 2002, there is 
no evidence in the record that it interfered with his performance of duty or contributed 
to his unfitness for duty at the time of his discharge.  The doctor found that the appli-
cant  had  a  full  range  of  motion  in  his  back  with  no  tenderness,  deformity,  or  neural 
deficit.  Therefore, pursuant to Chapter 2.C.3.a.(3)(a) of the PDES Manual, the FPEB did 
not commit error or injustice in failing to rate the applicant’s back condition. 

 
5. 

The  record  indicates  that  the  disability  that  caused  the  applicant  to  be 
unfit for duty was aching feet, following surgery for bilateral flatfoot, which prevented 
him from standing for periods longer that 20 to 40 minutes as a food service specialist.  
The DVA chose to rate the applicant’s problem as both bilateral foot injuries (VASRD 
code 5284) and tender scars (7804).  However, 38 C.F.R. § 4.14 states that the “evaluation 
of  the  same  disability  under  various  diagnoses  is  to  be  avoided.”    This  regulation  is 
elaborated under Chapter 9.A.4. of the PDES Manual, which clearly prohibits the appli-
cation of more than one VASRD rating to any area of the body when the impairment 
can  appropriately  be  reflected  by  a  single  VASRD  code.    The  Board  finds  that  the 
FPEB’s decision not to evaluate the aches and pains in the applicant’s feet, which limit-
ed  his  ability  to  stand  for  long  periods,  under  more  than  one  VASRD  code  was  both 
reasonable  and  correct  in  accordance  with  38  C.F.R.  § 4.14  and  Chapter  9.A.4.  of  the 
PDES Manual. 

 
6. 

There is no VASRD code that exactly describes the condition of the appli-
cant’s feet following his surgeries.  The CPEB and FPEB chose to rate his disability, by 
analogy,  to  acquired  flatfoot,  in  accordance  with  Chapter  2.C.3.a.(3)(a)1.  of  the  PDES 
Manual.  Although the DVA chose to apply different codes (5284 and 7804), the Board 
finds  that  the  Coast  Guard’s  decision  to  rate  the  applicant’s  foot  ache  by  analogy  to 
acquired flatfoot was reasonable and correct under Chapter 9.A.7. of the PDES Manual 
in light of the localization and symptomatology of his disability.  

 
7. 

Under the VASRD, the possible ratings the FPEB could have assigned for 
the  applicant’s  achy  feet  are  50%  if  it  found  the  condition  to  be  “pronounced”  with 
“extreme  tenderness  of  plantar  surfaces  of  the  feet”  and  “severe  spasm  of  the  tendo 
achillis  on  manipulation,  not  improved  by  orthopedic  shoes  or  appliances”;  30%  if  it 
found  the  condition  to  be  “severe”  with  “pain  on  manipulation  and  use  accentuated, 
indication of swelling on use, characteristic callosities”; 10% if it found the condition to 
be “moderate” with “pain on manipulation and use of the feet”; and 0% if it found the 
condition to be “mild” with “symptoms relieved by built-up shoe or arch support.”  The 
Board  finds  that  the  applicant  has  not  proved  that  the  FPEB  erred  or  committed  an 
injustice in assessing his foot ache as “moderate” with “pain on manipulation and use 
of the feet” rather than severe.  The reports by his doctors and physical therapist in 2002 
do  not  indicate  that  his  foot  ache  following  the  surgeries  was  severe  rather  than 
moderate, even though it rendered him unfit to serve as a food service specialist.   

 
8. 

Although  the  DVA  assigned  the  applicant’s  achy  feet  four  separate  10% 
ratings, as the JAG argued, under Lord v. United States, 2 Ct. Cl. 749, 754 (1983), DVA 
ratings are “not determinative of the same issues involved in military disability cases.”  
In assigning ratings pursuant to 10 U.S.C. §§ 1201 and 1203 and Chapter 2.C.2.a. of the 
PDES Manual, the FPEB considers to what extent a member is permanently disabled by 
a condition that renders him unfit for duty, whereas the DVA considers the extent to 
which a veteran’s current earning capacity is diminished by the disability.  Therefore, 
the Board finds that ratings assigned by the DVA do not prove that the 10% disability 
rating that the applicant received from the Coast Guard is erroneous or unjust. 

 
9. 

The applicant did not allege any lack of due process, and the Board finds 
that he received all due process provided under the PDES Manual.  Moreover, he did 
not rebut the FPEB’s findings and recommendation that he be discharged with a 10% 
disability  rating  and  severance  pay.    His  failure  to  submit  a  rebuttal  suggests  that  he 
accepted the FPEB’s assessment of his condition prior to his discharge. 

 
10.  Accordingly, the applicant’s request should be denied. 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of _______________________, for correction of his military record 

ORDER 

 

 
 

is denied.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

        

 
 James E. McLeod 

 

 

 
 J. Carter Robertson 

 

 

 
 Darren S. Wall