DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-022 
 
XXXXXXXXXXXXXX 
xxxxxxxxxxxx, BM1 (former)   

 

 

FINAL DECISION 

 
Author:  Ulmer, D. 
 
 
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 November 9, 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  July  28,  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 retired 
from  the  Coast  Guard  on  May  3,  2002,  because  of  a  physical  disability,  rather  than 
having been separated with severance pay. The applicant was separated from the Coast 
Guard  due  to  instability  of the  right knee  rated  as  20  percent  disabling,  for  which  he 
received severance pay.  To be retired by reason of physical disability, the applicant's 
disability rating must be at least 30 percent disabling.  
 
 
The applicant alleged that in addition to suffering from a disability to his right 
knee, he also suffered from a disability to his left knee, degenerative disc disease in his 
lower  back  and  severe  depression  which  were  not  rated  by  the  Central  Physical 
Evaluation  Board  (CPEB).1    He  stated  that  eight  months  after  his  discharge  from  the 
Coast Guard he underwent his eighth knee surgery.  He stated that the Department of 
Veterans Affairs (DVA) has determined that he is unemployable and given him a 100 
percent disability rating.   
                                                 
1   The Central Physical Evaluation Board is a permanently established administrative body convened to 
evaluate on a records basis the fitness for duty of active and reserve members and the fitness for duty of 
members on the temporary disability retired list.  See Chapter 4.A.1. of the Physical Disability Evaluation 
System Manual (COMDTINST M1850.2C). 
 

 
The  applicant  alleged  that  he  did  not  receive  adequate  counseling  from  the 
lawyer  appointed  to  assist  him  in  the  Physical  Disability  Evaluation  System  (PDES) 
process.  He stated the lawyer assigned to advise him told him to take the 20 percent 
disability rating because he could end up with nothing if he did not.   
 
 
In  addition,  the  applicant  alleged  that  his  discharge  by  reason  of  physical 
disability was improper.  He stated that because the Coast Guard failed to provide him 
with  adequate  medical  care  after  his  injuries,  he  has  had  to  undergo  numerous 
surgeries.  He stated that after surgery on his right knee in 1997 for a torn ACL (anterior 
cruciate ligament),2 he was wrongfully sent back to work even though he complained 
about the problems and pain in his legs.  He further stated the following: 
 

I have suffered enough negligence and enough physical pain and mental anguish from 
my injuries and my mistreatment.  Therefore after the wrongs are made right and after 
careful review of my medical and service record, I hope I can be treated with the respect I 
deserved two years ago and have my discharge changed to a medical retirement.    

 

SUMMARY OF THE RECORD 

On  July  18,  1989,  the  applicant  enlisted  in  the  Coast  Guard.    During  his 
approximately twelve years of service he injured both knees and had several surgeries 
on each one.  However, it was the right knee that was hit by a sledgehammer in 1994 
and  subsequently  twisted  in  2001  that  precipitated  the  medical  board  that  led  to  his 
discharge by reason of physical disability. 
 

On January 9, 2001, the applicant reported to a medical clinic complaining about 

pain in his right knee resulting from a work injury that occurred a few days earlier.     
 

A  medical  report  dated  January  30,  2001,  described  the  surgeries  to  the 
applicant's right knee as follows:  a 1994 meniscus repair, a 1996 knee scope, and a 1997 
knee scope.  The medical note stated that since his 1997 knee scope he had felt pain but 
thought the knee was stable until early January 2001, when he twisted it while getting 
off of a buoy.  The treating physician diagnosed the applicant as having an ACL and 
medial meniscus3 tear in his right knee.   He recommended that the applicant undergo 
an  anterior  ligament  reconstruction.  He  noted  that  the  left  knee  had  "no  joint  line 
tenderness, no effusion and FROM [full range of motion (full ROM)]."   
 

On February 16, 2001, the applicant underwent surgery to the right knee.  The 
surgical  procedures  performed  were  "Right  ACL  reconstruction  with  bone-patellar-
tendon bone graft" and "Right partial medial meniscectomy".  At a post-surgical visit on 
April  10,  2001,  the  applicant  was  noted  to  be  doing  well  with  some  pain  in  the  knee 
particularly with deep flexion.  He was described as having full ROM, minimal medial 
                                                 
2   The ACL is a band of tissue that connects bones  within the  knee.   See Dorlands Illustrated Medical 
Dictionary, 29th Ed., page 900-904.  
3   The medial meniscus of the knee joint is a crescent-shaped disk of fibrocartilage attached to the medial 
margin of the superior articular surface of the tibia.  See Dorlands at 1086.   

joint  line  tenderness,  no  effusion,  and  a  solid  end  point  on  Lachman's  examination4.  
The applicant was continued on physical therapy.   
 

On  July  11,  2001,  the  applicant  was  noted  to  have  some  pain  in  his  right  knee 
particularly when doing chain quad exercises.  The physician stated that the etiology of 
the knee pain was unknown and there was no effusion in the knee.  His examination 
revealed  that  the  applicant  had  full  ROM  with  no  joint  line  tenderness.    He  further 
stated that the applicant's "ligamentous exam feels even better than last time" and that 
he "seems to have a solid end point on the Lachman's exam[ination]."  The applicant's 
posterior cruciate ligament (PCL) was intact.  

 
In a July 25, 2001, medical note, the physician noted that the applicant still had 
some instability in the knee and that he was given an ACL brace.  The note also stated 
that  the  applicant  was  interested  in  a  medical  board5  (MB),  which  the  physician 
directed. 

 
On July 29, 2001, a MB performed by a Navy physician diagnosed the applicant 
as  suffering  from  right  anterior  cruciate  ligament  instability,  status  post  right  knee 
meniscectomy,  and  status  post  left  medial  meniscectomy.    The  medical  board  report 
stated the following with respect to the applicant's right knee: 

 
The [applicant] was doing well in rehab until about two and a half months 
after  his  surgery  when  he  was  doing  some  open  chain  quadriceps  and 
hamstring exercises.  He felt a pop in his knee at that time.  Since that time 
he has had an increase in pain in his knee and feelings of instability.  He 
has  continued  an  aggressive  rehab  regimen.    He  has  continued  to  have 
pain with going up and down stairs and feelings of instability.  At most 
recent evaluation there was a 6.0 mm difference from side to side with KT 
1000 measurements.   
 
The  MB  report  noted  that  post  operative  x-rays  taken  on  February  16,  2001, 
revealed satisfactory positioning of both tibial and femoral tunnels, and the x-rays taken 
on  May  30,  2001,  showed  no  abnormality.    The  MB  recommended  that  the  applicant 
continue  with  physical  therapy  and  that  his  case  be  referred  for  a  disability 
determination because his medical  condition precluded him from  continuing in a  full 
duty status.  The MB further recommended that the applicant was fit for limited duty 
and  should  be  assigned  in  CONUS  near  a  medical  treatment  facility  with  orthopedic 
capabilities.  No sea duty was recommended for the applicant.    

                                                 
4   Lachman's is a test for diagnosing a tear of the ACL. See http://www.aafp.org/980115ap/ballas.html.   
 
5      The  purpose  of  a  Medical  Board  is  to  evaluate  and  report  upon  the  present  state  of  health  of  any 
member who may be referred to the medical board by an authorized convening authority and to provide 
a  recommendation  as  to  whether  the  member  is  medically  fit  for  the  duties  of  his  or  her  office,  grade, 
rank,  or  rating.    See  Chapter  3.A.  of  the  Physical  Disability  Evaluation  System  Manual  (COMDTINST 
M1850.2C). 

The  applicant  was  informed  of  the  MB  findings  and  on  August  15,  2001, 

 
 
A  subsequent  undated  MB  addendum  by  a  Coast  Guard  physician's  assistant 
(PA)  stated  that  despite  aggressive  physical  therapy,  the  applicant  continues  to  be 
limited in his duties and not fit for sea duty.  The PA stated that the applicant would 
never be fit for the duties of his rate ashore or afloat and therefore should be separated 
from the Coast Guard.  
 
 
indicated that he would submit a rebuttal to the MB.   
 
 
The applicant's rebuttal to the MB is undated.  He disagreed with the MB that his 
left knee was pain free.  He stated that he has pain, popping, and arthritis in his left leg, 
which increases when the right leg is subjected to over use.  He stated that his left knee 
should have been included in determining his physical disability.  He also noted that 
his ACL graft of the right knee had failed.  
 
 
On September 14, 2001, the MB physician responded to the applicant's rebuttal.  
He stated that the applicant's left knee was not in optimal condition.  In this regard, he 
stated that while the ligamentous examination is intact, it was not surprising that  the 
knee gave the applicant feelings of pain and weakness when  stressed.  The physician 
further stated as follows: 
 

I  do  believe  that  [the  applicant's]  condition  at  this  time  precludes  him 
from  continuing  in  a  full  duty  status.    Further,  I  do  not  believe  that  the 
status in either knee is likely to improve.  His mild degeneration in his left 
knee at this point is likely to continue to worsen given his meniscetomy, 
which  is  likely  to  predisposed  him  to  degeneration.    In  addition,  his 
anterior cruciate ligament (ACL) graft laxity is certainly such that he has 
clinical instability in that knee.  The laxity that he has may well contribute 
to  continued  degeneration  within  that  knee  as  well.    Given  this,  it  is 
unlikely  that  [the  applicant]  will  have  improvement  over  time  in  either 
knee with the exception of possible moderate subjective improvement as 
his therapy progresses in his right knee.   
 
With respect to the applicant's concern that the MB did not clearly state that the 
ACL graft failed, the physician stated that the MB clearly noted that the applicant had 
"recurrent  subjective  instability  in  addition  to  objective  instability"  of  the  right  knee.   
The physician stated that it was difficult to state whether the ACL graft had completely 
failed  anatomically,  but  it  had  failed  functionally.    On  October  4,  2001,  the  applicant 
submitted a statement agreeing with the physician's comments.     

 
On November 1, 2001, the applicant's commanding officer (CO) agreed with the 
medical  board  that  the  applicant  was  unfit  for  continued  duty  and  that  a  physical 
disability  separation  was  warranted.    The  CO  stated  that  as  a  boatswains  mate,  the 
applicant's  work  was  physically  demanding  (lifting,  climbing,  and  strenuous  activity) 

and that he primarily performed on sea-going platforms and/or shore side depots.  He 
noted that the applicant was the unit's crane and forklift operator and that his current 
duties for the group also included leading the Master-at-Arms and security force and 
focusing on the group's aids to navigation mission that involved moving materials from 
the buoy yard to the buoy tenders.  The CO stated that the applicant was limited in the 
physical  duties  he  could  perform  and  that  he  was  easily  susceptible  to  additional 
injuries.  

 
On  February  7,  2002, the  applicant  reported  to  a  medical  clinic  complaining  of 
headaches.    The  clinical  note  stated  that  the  applicant  had  left  frontal  headaches 
associated with some nausea and vomiting.  He was diagnosed as having migraines and 
tension headaches.  He was treated with Fioricet.    

 
On January 28, 2002, the applicant underwent an MRI to evaluate the graft to the 
right knee.  The radiologist offered the following impression after reviewing the MRI 
results:   

 
"1.  Cannot exclude very small foreign body in the patellofemoral joint space.  
 
"2.  Findings which may represent small osteochondral lesion or osteochondral 

defect of the lateral femoral condyle at its articular surface. 

 
"3.  Tear of the posterior horn of the medial meniscus. 
 
"4.  The graft is intact with mild amount of central signal." 
 
On February 1, 2002, the Chief of the Health Services Division of a Coast Guard 
support center agreed that the applicant's case was appropriate for presentation to the 
Physical Disability Evaluation System (PDES).  

 
On  February  12,  2002,  the  applicant's  executive  officer  (XO)  submitted  the 
applicant's MB to the PDES for consideration.  The XO stated that the applicant was not 
fit for full duty. 
 

On  February  27,  2002,  the  Central  Physical  Evaluation  Board  (CPEB)  reviewed 
the applicant’s case and recommended that he receive a 20 percent disability rating for 
moderate  "recurrent  subluxation  [dislocation]  or  lateral  instability"  of  the  right  knee 
under Veterans Administration Schedule for Rating Disabilities (VASRD)6 code 5257.7  

                                                 
6   The VASRD at 38 C.F.R., part 4, is the DVA's schedule for rating disabilities. It is used by the PDES 
boards  to  assign  codes  and  percentages  of  disability  for  an  evaluee  found  unfit  for  duty.    See  Chapter 
2.A.51 of the PDES Manual.   
 
7  VASRD  code  5257  is  used  to  rate  the  impairment  of  the  knee  due  to  recurrent  subluxation  or  lateral 
instability.    A  30  percent  rating  is  authorized  for  severe  instability,  20  percent  for  moderate  instability, 

The CPEB also gave the applicant a 0 percent disability rating for other impairment of 
the left knee.  The CPEB granted the applicant a bilateral factor8 totaling two percent 
under  VASRD  code  5257,  resulting  in  a  combined  disability  rating  of  22  percent 
rounded down to 20 percent.  The CPEB recommended that the applicant be separated 
with  severance  pay.9    On  March  11,  2002,  the  applicant  accepted  the  CPEB’s  findings 
and recommendation and waived his right to a formal hearing. 

 
On  March  12,  2002,  the  applicant  underwent  a  medical  examination  for  the 
purpose of discharge.  The physician noted that he had a history of chronic right and 
left knee pain, with multiple surgeries on both knees, and instability in the right knee 
requiring him to wear a brace.  The physician also noted that the applicant had a history 
of daily low back pain10 and chronic headaches requiring medication.   

 
A medical note dated March 18, 2002, shows that the applicant was prescribed 

Zoloft to treat his situational depression.    

  
On  March  20,  2002,  the  Chief  Counsel  (now  the  Judge  Advocate  General) 
reported  that  the  proceedings  were  in  acceptable  form  and  technically  correct.    On 
March  22,  2002,  the  Chief  Administrative  Division  ordered  that  the  applicant  be 
discharged with severance pay.  

 
On May 3, 2002, the applicant was honorably discharged with a twenty percent 

disability rating and severance pay. 

 

Decision of the Department of Veterans Affairs (DVA) 

 
The  applicant  submitted  a  letter  from  the  DVA  stating  that  he  was  entitled  to 
commissary  and  exchange  privileges  because  he  was  100  percent  disabled.  The 
documentation offered by the applicant did not show whether the 100 percent disability 

                                                                                                                                                             
and  10  percent  for  slight  instability.    See  Summary  of  Applicable  Law,  below,  for  the  meanings  of  the 
VASRD codes.   
 
8   The bilateral factor is used when a partial disability results from disease or injury of both arms or of 
both legs, or of paired skeletal muscles.   The ratings for the disabilities of the right and left sides will be 
combined  and  10  percent  of  this  value  will  be  added  before  proceeding  with  further  combinations  or 
converting the degree of disability.  See 38 C.F.R. § 4.26.  
 
9 Under 10 U.S.C. § 1201, only disabilities ratings of 30 percent or higher entitle a member to a medical 
retirement.  Ratings of 10 or 20 percent entitle a member to severance pay.  10 U.S.C. § 1203. 
 
10   A medical note indicates that the applicant first reported low back pain after falling off of a motorcycle 
in 1994.  He was treated with medication and ice and given 72 hours of sick leave.  On December 12, 1994, 
in  a  follow-up  visit,  the  applicant  was  feeling  much  better  although  still  sore.    He  was  continued  on 
medication and prescribed 30 days of light duty.  A medical note dated May 25, 2000 indicates that the 
applicant  complained  of  recurrent  low  back  pain.    His  diagnosis  was  lumbosacral  strain  and  he  was 
treated with rest, ice, and referred to orthopedics.   

rating  covered  just  the  knees  or  if  other  conditions  were  included.      He  submitted 
evidence showing that he was receiving treatment from the DVA for depression.   
 

A medical report dated April 24, 2003, stated that the applicant had a left knee 
medial  meniscus  tear  that  was  scheduled  for  a  scope  and  meniscus  repair.    It  also 
indicated  that  the  applicant  suffered  from  a  major  depressive  disorder  that  had  been 
treated with Zoloft, but Wellbutrin was being recommended.   

 
On  or  about  October  27,  2003,  A  DVA  doctor  diagnosed  the  applicant  as 
suffering from depression related to chronic pain.  He rated the applicant's prognosis as 
fair  if  further  knee  replacement  surgery  increased  the  applicant's  ability  to  ambulate 
without pain, otherwise he rated the applicant's prognosis as poor.   He stated that the 
applicant was not able to work due to severe pain and depression. The report indicated 
that the applicant was taking Sertraline HCL for depression, Bupropion, and Tramadol 
for pain. A DVA outpatient psychiatric social worker (SW) stated, on or about October 
22,  2003,  that  the  applicant  suffered  from  "depression,  multiple  knee  surgeries,  joint 
pain, S/P Rhinoplasty [nose surgery] and Hypercholesterolemia."  The SW stated that 
the  applicant's  depression  was  directly  related  to  his  chronic  pain,  injuries,  and 
surgeries and that he was unable to work. 

 
An  MRI  of  the  applicant's  back  was  taken  at  the  DVA  on  December  16,  2003 
because  of  his  complaint  of  low  back  pain  that  radiated  down  the  left  leg.    The  MRI 
revealed degenerative disc disease at L5-S1 level and annular bulging at the L5-S1 level 
causing very minimal compression upon the anterior surface of the thecal sac, slightly 
greater to the left of the midline.  The report also noted the appearance of an annular 
tear at the posterior aspect of the L5-S1 disc.  The impression of the radiologist was that 
the  applicant  had  "very  mild  central  canal  stenosis  at  the  L5-S1  level  due  to  annual 
bulging." 
 

VIEWS OF THE COAST GUARD 

 

On  March  28,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  

 
The JAG 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 20 percent 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 only evidence offered by the applicant to prove that the Coast Guard erred in 
evaluating his condition is the 100 percent disabling rating from the DVA.  According to 
the JAG, the DVA rating is not persuasive given the different standard that the DVA 
employed.  In this regard, the JAG argued that the DVA rating is not determinative of 
issues involved in military disability cases. The JAG 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 
finding that the Applicant was 100% disabled is not relevant to the Coast 
Guard's finding that he was 20% disabled based solely on the conditions that 
rendered him unfit for continued service at the time of his separation.  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, the JAG stated that the applicant was afforded all of his due process rights 
with  respect  to  the  processing  of  his  case  through  the  PDES.    He  noted  that  the 
applicant,  with  the  advice  of  counsel,  waived  his  opportunity  to  challenge  the  Coast 
Guard's rating of his disability at a formal hearing.   
 
 
The  JAG  attached  comments  from  the  Commander,  Coast  Guard  Personnel 
Command (CGPC) as Enclosure (1) to the advisory opinion.  CGPC stated that 0 percent 
ratings are appropriate in cases where the medical condition that causes unfitness for 
military service is to such a mild degree that it does not meet the criteria even for the 
lowest rating provided in the VASRD.  CGPC further stated that at the time of the MB, 
the  degenerative  disc  disease  in  the  applicant's  lower  back  and  his  severe  depression 
were  not  the  conditions  that  caused  his  impairment  and  subsequent  separation.  
Moreover, GGPC stated that there is no evidence that the applicant objected to the 20 
percent disability rating.   
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On April 18, 2005, the Board received the applicant's response to the views of the 
Coast Guard.  He stated that he had problems with his left knee, back, and depression 
that were not rated by the CPEB.  He alleged that the Coast Guard failed to diagnose 
and treat the degenerative and bulging disc disease in his back.  He also alleged that he 
suffered  severe  nerve  damage.    He  stated  that  the  use  of  crutches  resulting  from  the 
four surgeries on his right knee has caused further damage to his left leg, shoulders and 
back.  He stated that currently he is in need of two knee replacement surgeries.   

 

The  applicant  stated  that  the  attorney  appointed  by  the  Coast  Guard  to  advise 
him during the PDES processing stated "to take what I could get or I could end up with 
nothing."    He stated that he should have been medically retired.   
 

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  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.” 
 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
 
The PDES Manual governs the separation of members due to physical disability.  
Chapter 3 provides that an IMB of two medical officers shall conduct a thorough medi-
cal  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 refer-
ral  to  a  CPEB.    The  member  is  advised  about  the  PDES  and  permitted  to  submit  a 
response to the IMB report.   
 

Chapter  3.I.7.  provides  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  endorsement 
must include a summary of the duties normally associated with the member’s grade or 
rating and a statement regarding the member’s ability to perform those duties. 
 
 
Chapter 4 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 4.A.5.7. provides 
that if the CPEB finds that the evidence is insufficient for a proper determination, it will 
return  the  case  to the member’s  command  for  a  Disposition  Medical  Board  (DMB)  to 
amplify the record.   
 
 
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.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 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 9.A.8. provides that if “a medical condition which causes or contributes 
to unfitness for military service is of such mild degree that it does not meet the criteria 
even  for  the  lowest  rating  provided  in  the  VASRD  …  [a]  zero  percent  rating  may  be 
applied in such cases.” 
 

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 section 1552 of 

title 10 of the United States Code.  The application was timely. 

 
2.    The  applicant  has  submitted  insufficient  evidence  to  prove  that  the  Coast 
Guard  committed  an  error  by  discharging  him  with  a  20  percent  disability  rating  for 
instability of the right knee and a 0 percent disability rating for other impairment of the 
left knee under code 5257 of the VASRD.    
 

3.    The  CPEB's  determination  that  the  applicant  suffered  from  subluxation  or 
lateral instability of the right knee is supported by the MB diagnosis of "right anterior 
cruciate  ligament  instability."  Medical  examinations  after  right  knee  surgery  in  2001 
noted  that  the  applicant  had  some  pain  and  instability  in  the  knee  for  which  he  was 
prescribed a brace.  The post-surgical examinations also revealed no lack of ROM, no 
effusion and minimal to no tenderness.  An MRI taken on February 7, 2002, suggested 
some irregularities with the knee, but showed that the graft (surgical reconstruction of 
the  knee)  was  intact.    The  MRI  was  available  to  the  CPEB  when  it  determined  the 
applicant's fitness for duty and percentage of disability.  There is no medical evidence in 

the record that the Coast Guard's diagnosis  of subluxation or lateral instability of the 
right knee was erroneous.   

 
4.  In rating disabilities, the PDES manual requires the Coast Guard to use the 
VASRD.  The CPEB determined that the applicant's condition and symptoms were most 
similar to those under VASRD code 5257.   This code described the rating percentages 
for recurrent subluxation or lateral instability of the knees as follows:  30 percent for a 
severe  condition,  20  percent  for  a  moderate  condition,  and  10  percent  for  slight 
condition.   The CPEB's 20 percent disability rating of the knee appears to be supported 
by the evidence.  None of the medical reports describe the applicant's knee instability as 
severe. In this regard, a July 25, 2001, medical report noted that the applicant has some 
instability  in  the  knee;  the  July  29,  2001,  MB  described  the  instability  as  "feelings  of 
instability in the knee"; and the September 14, 2001, MB reply to the applicant's rebuttal 
stated that the applicant had "feelings of" and "clinical" instability in the knee. A brace 
was prescribed for the applicant's knee.   However, the use of an orthopedic device is 
not  listed  as  a  criterion  for  rating  instability  of  the  knee  under  VASRD  code  5257.   
Therefore the 20 percent disability rating under the VASRD appears to be correct. 

 
5.  The applicant is mistaken in his allegation that the CPEB did not rate his left 
knee  when  it  reviewed  his  case  on  February  27,  2002.      The  impairment  of  the 
applicant's left knee was rated as 0 percent disabling, which meant that the problems of 
the left knee were mild and did not meet the requirements for the lowest rating under 
VASRD  code  5257.    A  0  percent  disability  rating  is  valid  and  entitled  to  the  same 
compensation prescribed for ratings of less than 30 percent.  See Chapter 9.A.8. of the 
PDES  Manual.    An  April  24,  2003,  medical  report  from  the  DVA  indicates  that  the 
applicant was scheduled for a scope and meniscus repair of the left knee.  However, this 
evidence does not prove that when the CPEB met a year earlier on February 27, 2002, 
the  applicant's  left  knee  was  more  than  0  percent  disabling.    A  medical  report  dated 
January 30, 2001, described the applicant's left knee as having "no joint line tenderness, 
no effusion and [full range of motion]."  Subsequently, the MB physician described the 
degeneration of the applicant's left knee as mild, but noted that it would likely worsen 
in  the  future.    Accordingly,  the  evidence  submitted  by  applicant  from  the  DVA  is 
insufficient  to  prove  that  at  the  time  of  his  separation  from  the  Coast  Guard  the 
impairment of his left knee was greater than 0 percent.    

 
6.    The  applicant  has  failed  to  prove  that  his  back  condition  and  depression 
should  have  been  rated  as  physical  disabilities.    Chapter  2.A.38  defines  physical 
disability  as  any  manifest  or  latent  physical  impairment  that  separately  makes  or  in 
combination make a member unfit for continued duty. Chapter 2.A.50. defines unfit for 
continued duty as the status of a member who is unable to perform the duties of office, 
grade, rank, or rating because of a physical disability. Chapter 2.C.2.i. makes clear that a 
member  may  have  physical  impairments  ratable  in  accordance  with  the  VASRD,  but 
such  impairments  may  not  necessarily  render  the  member  unfit  for  military  duty.  
Chapter  9.A.1.c.  of  the  PDES  directs  that  disabilities  that  are  neither  unfitting  for 

military service nor contributing to the inability to perform military duty shall not be 
rated.  
 
7.   Taking into consideration the provisions just discussed, it is the applicant's 
burden  to  prove  that conditions  other than  those  identified  as  disabling  by  the  CPEB 
caused him to be unfit or contributed to his unfitness for military duty, i.e. unable to 
perform the duties of his office, grade, rank, or rating. The last medical report on the 
applicant's back pain while in the Coast Guard occurred on May 25, 2000, and there is 
nothing  in  the  medical  report  that  indicates  that  the  applicant's  back  condition  was 
unfitting for duty then or at the time of  his discharge.  The December 16, 2003,  DVA 
MRI  noted  the  applicant  had  "very  mild  central  canal  stenosis  at  the  L5-S1  level."  
(Emphasis  added.)  This  MRI  taken  over  a  year  after  the  applicant's  discharge  is  not 
sufficient to prove that at the time of his discharge in May 2002 he suffered from a back 
disability that caused him to be unfit to perform the duties of his rate.    

 
8.  While a March 18, 2002, medical note and the discharge medical examination 
noted the applicant's treatment for depression, neither indicated that the condition was 
unfitting for military duty.  Under Chapter 2.C.3.a.(3)(a) of the PDES Manual, the CPEB 
rates only “those disabilities which make an evaluee unfit for military service or which 
contribute to his or her inability to perform military duty.” While the applicant suffered 
from  numerous  conditions,  it  appears  that  only  the  knee  conditions  caused  the 
applicant to be unfit to perform the duties of his office and rate.  
 

9.    Chapter  2.C.2.a.  states  that  the  sole  standard  in  making  determinations  of 
physical disability as a basis for retirement or separation shall be unfitness to perform 
the  duties  of  one's  rank  or  rating.    In  this  regard,  the  CO's  statement  is  critical  in 
determining how the applicant's conditions affected his ability to do his job.  The CO's 
statement that the applicant was physically unable to climb, lift and perform strenuous 
activity required of a boatswain's mate caused the applicant to be unable to adequately 
perform his duties.  There is no indication in the record that any of the applicant's other 
conditions (back pain and depression) caused him to be unable to perform the duties of 
his rate and rank, although each may be service connected for purposes of the DVA. 

 
10.    Although  the  applicant  submitted  evidence  showing  that  the  DVA  has 
determined that he is unemployable and is 100 percent disabled, such evidence does not 
establish  error  by  the  Coast  Guard.    This  Board  has  consistently  held  that  a  higher 
disability  rating  from  the  DVA  does  not  of  itself  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."   
 

11.  Importantly, the Board finds that the applicant 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 20 percent disabling.  
The applicant also waived his right to a formal hearing, 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  20 
percent disability rating and he relied on that advice. However, there is no 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  a  formal  hearing.    Absent 
persuasive proof of error or injustice, the Board will not disturb findings rendered by 
the Coast Guard. 

 
12.  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.   

 
13.    The  Board  notes  the  applicant's  allegations  that  he  received  poor  medical 
care from the Coast Guard for his knees.  Even if this were true, that fact would not be a 
basis for increasing the disability rating.  As stated above, a disability rating from the 
Coast Guard is the extent to which a physical disability causes a member to be unfit to 
perform the duties of his office, grade, or rate.  For conditions and disabilities that do 
not fall into this category, the DVA is the proper source for care and compensation.    
 

14.  Accordingly, the applicant’s request for relief should be denied. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The  application  of  former  BM1  xxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

        

 
 
 David Morgan Frost 

 

 

 
 Patrick B. Kernan 

 

 

 
 Audrey Roh