DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2005-024 
 
Xxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR: Andrews, J. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on November 15, 2004, upon 
receipt of the application and the applicant’s military and medical records. 
 
 
members who served as the Board in this case. 
 

This final decision, dated August 31, 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 July 11, 2003, with a physical disability rating of at least 30%, 
instead of being discharged with a 20% rating and severance pay.  In addition, he asked 
that he be retired as a commander (O-5) because at the time of his separation, there was 
a commander selection board scheduled to convene three months later. 
 
 
The applicant alleged that although at the time of his separation, he had several 
medical  conditions  that  contributed  to  his  unfitness  for  duty,  the  Coast  Guard  only 
rated  one  of  his  conditions—diabetes  mellitus—and  assigned  him  only  a  20%  rating, 
whereas  upon  separation,  the  Department of  Veterans’  Affairs  (DVA)  assigned  him  a 
60% rating for diabetes and ratings for other conditions that combined for a 100% dis-
ability rating.  He alleged that the DVA’s ratings prove that the Coast Guard’s rating 
was erroneous and unjust and that he should have received a retirement by reason of 
physical disability. 
 

SUMMARY OF THE APPLICANT’S MEDICAL RECORDS  

 
 
The applicant became an officer in the regular Coast Guard on May 24, 1989.  In 
1996,  he  resigned,  but  six  months  later  received  a  commission  in  the  Coast  Guard 
Reserve.  He served on active duty from September 24, 1996, to April 30, 1997, and from 
June 1, 1997, until his medical discharge on July 11, 2003. 
 
Records Regarding Diabetes Mellitus and Associated Conditions 
 
 
By 1995, the applicant had “demonstrated hyperlipidemia and hypercholesterol-
emia in several successive blood tests.”  On September 25, 1997, he was diagnosed with 
diabetes  mellitus  (DM).    He  was  instructed  about  diet,  exercise,  and  monitoring  his 
blood  sugar  levels.    He  was  prescribed  glucophage  tablets.    On  January  14,  1998,  the 
doctor  noted  that  the  applicant  was  “doing  well”  but  needed  to  exercise  more.    In 
spring of 1998, the applicant’s blood sugar levels began to rise and he had “mild prote-
inuria.”  He was placed on glucose-lowering medications.   
 

Because DM requiring glucose-lowering medications as well as dietary control is 
a  disqualifying  condition  for  retention  on  active  duty  under  Article  3.F.10.e.  of  the 
Medical  Manual,  the  applicant  had  to  receive  a  waiver  to  remain  on  active  duty.    In 
December 1998, he received a waiver to remain on active duty upon the recommenda-
tion of his physician.  
 
A  doctor’s  report  indicates  that  from  September  1998  through  June  1999,  the 
 
applicant’s  glycemic  level  was  controlled  without  medication.    After  the  applicant 
reported blood sugar spikes on July 1, 1999, he was again placed on glucose-lowering 
medication.    He  occasionally  complained  of  tingling  or  pain  in  his  legs.    However, 
based on the recommendation of his physician, the waiver was continued in 1999 and 
2000.  In February 2001, his DM was considered “marginally controlled” by medication, 
but by May 2001, his condition was noted as “well controlled on oral medications.” 
 
 
In January 2002, the applicant underwent more dietary counseling.  The doctor 
noted that his DM was “well controlled” but that the medication, Metformin, made him 
feel nauseous.  The doctor prescribed Avandia in lieu of the Metformin. 
 
 
From April 30 to May 13, 2002, the applicant’s glycemic levels tested consistently 
high.  He was placed on insulin.  After the applicant submitted a request for retirement 
or discharge due to his condition, his command initiated an Initial Medical Board (IMB).  
 
Records Regarding Other Conditions 
 
 
 Headaches:  In January 1998, during a diabetes check-up, the doctor noted that 
the applicant had a history of migraine headaches.  On August 14, 2002, the applicant 

sought treatment for a chronic headache.  He reported that he had had headaches for 
about ten years and got them three or four times a week.  He reported that he got very 
bad headaches three or four times a year.  An MRI of the brain had “normal” results.  
On December 6, 2002, the applicant sought medical help for dizziness and nausea, but 
not  for  a  headache.    The  doctor  noted  that  the  applicant’s  dizziness  might  be  either 
benign positional vertigo or a migraine variant.   
 

Depression:    At  a  follow-up  medical  appointment  for  the  applicant’s  dizziness 
and nausea on December 6, 2002, he informed the doctor that he was taking Celexa, an 
anti-depressant.  In addition, a doctor who examined the applicant pursuant to a medi-
cal board noted that the applicant reported a history of depression. 

 
Bronchitis:  During his time on active duty, the applicant was periodically treated 

 
for upper respiratory tract infections or bronchitis. 
 
 
Carpal  Tunnel  Syndrome:  The  applicant  complained  of  pain  and  numbness  in 
his right arm in July and August 2001.  He was diagnosed with carpal tunnel syndrome.  
After  he  complained  of  numbness  and  tingling  in  his  fingers  in  August  2002,  he  was 
referred for a nerve conduction test, which determined that his carpal tunnel syndrome 
was moderate to severe.  The neurologist recommended surgery.  Although documen-
tation  of  the  wrist  surgeries  is  not  in  the  record  before  the  Board,  they  apparently 
occurred in February and May 2003, prior to the applicant’s discharge. 
 
Physical Disability Evaluation System (PDES) Processing 
 
 
On December 3, 2002, the physician treating the applicant for DM issued a report 
pursuant to the IMB.  He noted that the applicant’s diagnoses, inter alia, included dia-
betes mellitus type II, which was under “very good control” with twice daily injections 
of  48  units  of  insulin;  mild  diabetic  neuropathy;  proteinuria  secondary  to  the  DM; 
hypertension,  which  was  “well  controlled”  with  medication;  hyperlipidemia,  though 
with medication his LDL (cholesterol level) had decreased to 134; and bilateral carpal 
tunnel  syndrome,  which  might  be  fixed  surgically.    The  doctor  also  noted  that  with 
prophylactic  treatment  of  his  migraines,  the  applicant  “is  actually  noticing  significant 
improvement.”  In addition, he noted that in November 2002, the applicant had com-
plained  of  “a  moderate  amount  of  depression,”  had  been  prescribed  40  milligrams  of 
Celexa per day, “and is doing well with that.” 
 

At a medical examination on February 3, 2003, pursuant to his IMB, the applicant 
completed  a  Report  of  Medical  History,  on  which  he  noted  having  had,  inter  alia, 
chronic bronchitis since 1998; carpal tunnel syndrome since the summer of 2001; pain 
and tingling in his feet due to mild diabetic neuropathy; proteinuria since 1994; complex 
migraines since the mid 1990s; high blood pressure, and depression.  After questioning 
the  applicant  about  this  report,  the  doctor  noted  that  the  applicant  had  a  history  of 

bronchitis from 1998 to 2000 and had been “OK since,” but had suffered from depres-
sion  since  2002.    The  doctor  also  noted  that  the  applicant  would  soon  be  undergoing 
surgery for his carpal tunnel syndrome.  The doctor noted that the applicant’s  condi-
tions  other  than  his  DM  was  “NCD,”  which  means  not  considered  disqualifying  for 
retention on active duty. 
 
 
On  February  3,  2003,  the  IMB  found  that  the  applicant  was  not  fit  for  duty 
because of his DM and referred him to the Central Physical Evaluation Board (CPEB) 
for further processing.  The IMB noted that he was then taking 62 units of insulin twice 
daily.  The IMB did not list any of the applicant’s other diagnosed medical conditions as 
causing him to be unfit for duty.  The applicant was advised of the finding and recom-
mendation and indicated that he would not rebut them.   
 

On  February  21,  2003,  the  applicant’s  commanding  officer  (CO)  forwarded  the 
report  to  the  CPEB.    The  CO  noted  that  the  applicant  was  currently  assigned  as  the 
Executive Officer of xxxxxxxxxxxx at a busy port and was “able to fully perform” all of 
his assigned administrative and  management duties.   However, the CO noted “it has 
become necessary to make accommodations to his work schedule due to difficulties he 
has experienced with his medical condition.  In addition, he has had to absent himself 
from work, at an increasing rate, on sick leave for not insignificant periods of time due 
to  medical  complications,  …  [which  has]  had  negative  consequences  on  the  effective 
management  of  the  unit.”    The  CO  stated that  during  the  previous  three  months,  the 
applicant had been absent from work for ten workdays for reasons related to his DM. 
 
 
On June 2, 2003, the CPEB recommended that the applicant be discharged with a 
20%  disability  rating  because  of  “diabetes  mellitus:  requiring  insulin  and  restricted 
diet,” under VASRD code 7913.   
 
 
On June 4, 2003, after being informed of his right to counsel and his right to a 
formal  hearing,  the  applicant  signed  the  CPEB  recommendation  to  indicate  that  he 
accepted it and waived his right to a formal hearing. 
 
 
On June 13, 2003, following review by the Judge Advocate General, the CPEB’s 
recommendation  was  approved  by  the  Commander  of  the  Coast  Guard  Personnel 
Command (CGPC), who directed that the applicant be discharged with a 20% disability 
rating and severance pay.  The applicant was therefore discharged from active duty in 
the Reserve on July 11, 2003. 
 
Decision of the DVA 
 

A rating decision dated July 30, 2004, shows that effective as of the day after his 
discharge from the Coast Guard, the DVA has granted the applicant a 100% disability 

rating  based  on  the  following  separate  disability  ratings  for  service-connected  condi-
tions: 
 

•  60% for diabetes mellitus with peripheral vascular disease, left leg, hypertension 
and hyperlipidemia and proteinuria; 
•  70% for major depression; 
•  30% for migraine headaches; 
•  20% for peripheral vascular disease, right leg; 
•  10% for bronchitis; 
•  10% for left carpal tunnel syndrome; and 
•  10% for right carpal tunnel syndrome. 

 

The DVA noted that the 60% rating for the applicant’s diabetes was based on the 
applicant’s statements that he had to see his doctor for this condition every one or two 
weeks; that he required hospitalization at least twice a year; that he felt progressive loss 
of strength, easy fatigability, dizziness, and numbness and tingling in his feet; and that 
he took insulin and medication for hypertension, hyperlipidemia, and proteinuria. 
 
 
The DVA noted that the applicant’s Coast Guard medical records “are very brief 
regarding  depression,  but  they  do  show  you  were  taking  Celexa  for  depression  in 
December of 2002.”  The 70% rating for depression was based on the applicant’s taking 
80 milligrams of Celexa a day and complaints of poor sleep, desire for isolation, poor 
motivation and interest, low self esteem, and declining concentration. 
 
 
The DVA awarded the applicant a 30% rating for migraine headaches because he 
complained  of  getting  “headaches  twice  a  week  that  prevent  [him]  from  doing  any-
thing.”  The DVA awarded the applicant a 20% rating for peripheral vascular disease in 
his right leg because numbness, tingling, and +2/+4 bilateral ankle and knee jerks.  The 
DVA awarded the applicant a 10% rating for bronchitis because he stated that he had 
suffered from bronchitis two or three times a year for the past five years and because 
tests showed slightly decreased pulmonary function.  The DVA awarded the applicant 
10% ratings for carpal tunnel syndrome in each wrist because following his surgeries in 
February and May of 2003, he had slightly decreased sensation in his hands but other-
wise had a “full range of motion in [his] wrists with no fatigue, lack of endurance, pain, 
or weakness.” 
 

VIEWS OF THE COAST GUARD 

 
 
On April 5, 2005, the Judge Advocate General (JAG) of the Coast Guard submit-
ted  an  advisory  opinion  in  which  he  recommended  that  the  Board  deny  relief  in  this 
case. 
 

 
The JAG argued that the evidence submitted by the applicant—his DVA rating 
—is “insufficient to overcome the presumption of regularity afforded the Coast Guard.”  
DVA disability ratings are “not determinative of the same issues involved in  military 
disability cases.”  Lord v. United States, 2 Ct. Cl. 749, 754 (1983).  The JAG alleged that 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  disability.”    The  JAG  also 
alleged that the “procedures and presumptions applicable to the DVA evaluation proc-
ess are fundamentally different from and often more favorable to the veteran than those 
applied under the PDES. …  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 
condition that rendered him unfit for continued service at the time of his separation. …  [A]ny 
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  also  alleged  that  the  applicant  received  due  process  and,  prior  to  his 
discharge, accepted the finding and recommendation of the CPEB that he receive a 20% 
disability rating and severance pay. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On April 6, 2005, the Chair sent a copy of the views of the Coast Guard to the 
applicant  and  invited  him  to  respond  within  30  days.    The  applicant  was  granted  an 
extension of twelve days and responded on May 18, 2005. 
 
 
The  applicant  stated  that  prior  to  his  discharge,  Coast  Guard  medical  and 
administrative  personnel  advised  him  that  the  only  medical  conditions  for  which  he 
would receive a disability rating would be the conditions that prevented him from con-
tinuing on active duty.  Mistrusting their advice, he hired a private attorney, who told 
him the same thing. 
 
 
The applicant objected to the JAG’s statement that the DVA’s rating is not per-
suasive  evidence  of  an  error  by  the  Coast  Guard.    He  noted  that  the  PDES  Manual 
requires the Coast Guard to use the DVA’s VASRD schedule when assigning disability 
ratings. 
 

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 Medical Manual 
 
 
Article 3.F. of the Medical Manual lists conditions that are considered normally 
disqualifying for retention and trigger a member’s processing under the PDES.  Article 
3.F.10.e. of the Medical Manual provides that diabetes mellitus may be disqualifying for 
retention on active duty when “requiring insulin or not controlled by oral medications.”  
 
 
Article 3.F.8.c.(2) provides that hypertension may be disqualifying for retention 
when the member’s “[d]iastolic pressure consistently more than 90 mm Hg following an 
adequate period of therapy on an ambulatory status” or if there is “[a]ny documented 
history of hypertension regardless of the pressure values if associated with one or more 
of  the  following:  cerebrovascular  symptoms;  arteriosclerotic  heart  disease  if  sympto-
matic and requiring treatment; kidney involvement, manifested by unequivocal impair-
ment of renal function; or grade III changes in the fundi.” 
 
 
Article 3.F.16.c. provides that bipolar disorders or recurrent major depression are 
disqualifying for retention, as well as “[a]ll other mood disorders associated with sui-
cide  attempt,  untreated  substance  abuse,  requiring  hospitalization,  or  requiring  treat-
ment (including medication, counseling, psychological or psychiatric therapy) for more 
than  6  months.    Prophylactic  treatment  requiring  more  than  one  drug,  or  associated 
with  significant  side  effects  (such  as  sedation,  dizziness  or  cognitive  changes)  or  fre-
quent follow-up that limit duty options.” 
 

Article 3.F.15.h. provides that migraine headaches are disqualifying for retention 
when  “[m]anifested  by  frequent  incapacitating  attacks  or  attacks  that  last  for  several 
consecutive days and unrelieved by treatment.” 

 
Article  3.F.8.b.(1)  provides  that  arteriosclerosis  obliterans  (peripheral  vascular 
disease) may be disqualifying when there is “(a) intermittent claudication of sufficient 
severity to produce pain and inability to complete a walk of 200 yards or less on level 
ground at 112 steps per minute without a rest; or (b) objective evidence of arterial dis-
ease with symptoms of claudication, ischemic chest pain at rest, or with gangrenous or 
permanent ulcerative skin changes in the distal extremity; or (c) involvement of more 
than one organ system or anatomic region (the lower extremities comprise one region 
for this purpose) with symptoms of arterial insufficiency.” 
 

 
Article 3.F.7.b.(4) provides that chronic bronchitis may be disqualifying for reten-
tion  if  there  is  a  “severe  persistent  cough,  with  considerable  expectoration,  or  with 
moderate emphysema, or with dyspnea at rest or on slight exertion, or with residuals or 
complications that require repeated hospitalization.” 
 
 
Article 3.F.15.n.(1) provides that neuralgia (pain) of the peripheral nerves may be 
disqualifying for retention when “symptoms are severe, persistent, and not responsive 
to treatment.”  In addition, under Article 3.F.12.a.(2), a member may be disqualified for 
retention if he does not have the following: at least a 15-degree total range of motion in 
the wrist (flexion plus extension); an “active flexor value of combined joint motions of 
135 degrees in each of two or more fingers of the same hand; an “active extensor value 
of combined joint motions of 75 degrees in each of the same two or more fingers”; and a 
“[l]imitation  of  motion  of  the  thumb  that  precludes  apposition  to  at  least  two  finger 
tips.” 
 
Provisions of the PDES Manual 
 
 
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  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 4.A.14.c. provides that if the member objects to a CPEB finding, he may 
demand a hearing by the Formal Physical Evaluation Board (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 Advo-
cate General, and forwarded to CGPC for final action.   
 
VASRD 
 
 
 
RATING  REQUIRED LEVEL OF ILLNESS 

Under the VASRD at 38 C.F.R. § 4.119, diabetes mellitus is rated as follows: 

100 

60 

40 
20 

Requiring more than one daily injection of insulin, restricted diet, and regu-
lation of activities (avoidance of strenuous occupational and recreational 
activities) with episodes of ketoacidosis or hypoglycemic reactions requir-
ing at least three hospitalizations per year or weekly visits to a diabetic care 
provider, plus either progressive loss of weight and strength or complica-
tions that would be compensable if separately evaluated 
Requiring insulin, restricted diet, and regulation of activities with episodes 
of ketoacidosis or hypoglycemic reactions requiring one or two hospitaliza-
tions per year or twice a month visits to a diabetic care provider, plus 
complications that would not be compensable if separately evaluated 
Requiring insulin, restricted diet, and regulation of activities 
Requiring restricted diet and either insulin or oral hypoglycemic agent 

10 

Manageable by restricted diet only 

 

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 submission, and appli-
cable law: 
 
 
§ 1552.  The application was timely. 
 

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

1. 

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  disability 
rating.1  Although prior to his discharge, the applicant accepted the CPEB’s recommen-
dation  that  he  be  discharged  with  a  20%  disability  rating  and  severance  pay,  he  now 
alleges that the 20% disability rating he received from the Coast Guard was erroneous 
and  pointed  to  his  100%  combined  disability  rating  from the  DVA  as  evidence  of  the 
alleged error.  The record indicates that the applicant’s 100% combined disability rating 
from the DVA includes 70% for major depression; 60% for diabetes mellitus (DM) with 
peripheral vascular disease in his left leg, hypertension, hyperlipidemia, and proteinu-
ria;  30%  for  migraine  headaches;  20%  for  peripheral  vascular  disease  in  his  right  leg; 
10% for bronchitis; 10% for carpal tunnel syndrome in his left wrist; and 10% for carpal 
tunnel syndrome in his right wrist.   

 
3. 

Under Chapter 2.C.3.a.(3)(a) of the PDES Manual, the CPEB may assign a 
disability rating for 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 con-
dition 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  military  medical  records  contain  diagnoses  of  depression, 
migraine headaches, bronchitis, and bilateral carpal tunnel syndrome, there is insuffi-
cient evidence in the record for the Board to conclude that these conditions were dis-
qualifying for retention at the time of his discharge or that they actually interfered with 
his performance of duty or contributed to his unfitness for duty at the time of his dis-
charge.  Specifically, the Board notes the following with respect to these conditions: 

 

                                                 
1  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”). 

 

a. 

As the DVA stated, the applicant’s military medical records contain 
very little information or evidence of his depression.  There is a notation in the records 
that in November 2002, he complained of feeling depressed and was prescribed Celexa.  
However, there is no evidence in the record that he was ever diagnosed with the poten-
tially disqualifying condition “recurrent major depression” while on active duty, pur-
suant  to  Article  3.F.16.c.  of  the  Medical  Manual.    Nor  is  there  any  evidence  that  his 
depression interfered with his performance of duty or contributed to his unfitness for 
duty  as  is  required  for  a  condition  to  be  assigned  a  disability  rating  under  Chapter 
2.C.3.a.(3)(a) of the PDES Manual. 

 
 

b. 

The applicant’s medical records indicate that he complained of get-
ting severe migraine headaches three or four times per year. Article 3.F.15.h. provides 
that  migraine  headaches  are  only  disqualifying  for  retention  when  “[m]anifested  by 
frequent  incapacitating  attacks  or  attacks  that  last  for  several  consecutive  days  and 
unrelieved  by  treatment.”    The  records  do  not  indicate  that  the  applicant’s  migraines 
met this standard.  Moreover, the Board notes that the applicant apparently performed 
active duty for more than ten years despite his headaches.  Therefore, the evidence is 
insufficient  to  prove  that  the  applicant’s  migraines  rendered  him  unfit  for  continued 
service  or  contributed  to  his  unfitness  for  duty  as  is  required  for  a  condition  to  be 
assigned a disability rating under Chapter 2.C.3.a.(3)(a). 

 
 

c. 

The applicant’s medical records indicate that he occasionally com-
plained of tingling or pain in his legs and that this condition was deemed secondary to 
his DM.  However, there is no evidence in his military medical records that the appli-
cant’s peripheral vascular disease ever met the standards set under Article 3.F.8.b.(1) of 
the Medical Manual for a disqualifying condition while he was on active duty.  There is 
no evidence that the tingling and pain in his legs ever rendered him unfit for continued 
service  or  contributed  to  his  unfitness  for  duty  as  is  required  for  a  condition  to  be 
assigned a disability rating under Chapter 2.C.3.a.(3)(a). 

 
 

d. 

The  applicant’s  medical  records  indicate  that  he  was  periodically 
diagnosed  with  bronchitis  or  an  upper  respiratory  tract  infection  during  his  years  of 
service.  However, although bronchitis may have caused him to take occasional days of 
sick leave, there is no evidence that it rendered him unfit for continued service or con-
tributed to his unfitness for duty as is required for a condition to be assigned a disabil-
ity  rating  under  Chapter  2.C.3.a.(3)(a)  of  the  PDES  Manual.    Furthermore,  the  Board 
notes that during the applicant’s medical examination for the IMB, he apparently told 
the doctor that he had suffered from bronchitis frequently from 1998 to 2000 but had 
been “OK since.”  

 
 

e. 

The record indicates that in 2002, the applicant’s carpal tunnel syn-
drome was deemed moderate to severe and that he underwent surgery on both wrists 
prior to his discharge in 2003.  The DVA report indicates that following surgery, testing 

revealed  that  the  applicant  had  slightly  decreased  sensation  in  his  hands  but  a  “full 
range of motion in [his] wrists with no fatigue, lack of endurance, pain, or weakness.”  
There is no evidence in the record that at the time of his discharge the applicant suf-
fered  disqualifying  pain  in  his  wrists  or  hands  pursuant  to  Article  3.F.15.n.(1)  of  the 
Medical Manual or any of the limitations of motion described in Article 3.F.12.a.(2).  He 
has not proved that at the time of his discharge carpal tunnel syndrome rendered him 
unfit for continued service or contributed to his unfitness for duty as is required for a 
condition to be assigned a disability rating under Chapter 2.C.3.a.(3)(a). 

 
 

f. 

The  record  also  indicates  that  the  applicant  was  being  treated  for 
hypertension,  hyperlipidemia,  and  proteinuria  at  the time  of  his  discharge.    Of  these, 
only hypertension is a potentially disqualifying condition, and the medical records do 
not indicate that the applicant’s hypertension met the requirements for a disqualifying 
condition  under  Article  3.F.8.c.(2)  of  the  Medical  Manual.    Moreover,  his  medical 
records indicate that the applicant was diagnosed with each of these conditions at least 
seven years before his discharge, was treated for them, and continued to perform active 
duty.    There  is  no  evidence  that  these  conditions  rendered  him  unfit  for  continued 
service  or  contributed  to  his  unfitness  for  duty  as  is  required  for  a  condition  to  be 
assigned a disability rating under Chapter 2.C.3.a.(3)(a) of the PDES Manual. 

 
Therefore, the Board finds that the applicant has not proved that the CPEB com-
mitted error or injustice in failing to assign disability ratings for the applicant’s medical 
conditions other than diabetes mellitus. 

 
4. 

The  record  indicates  that  the  disability  that  caused  the  applicant  to  be 
unfit for continued service at the time of his discharge was DM.  The DVA assigned the 
applicant a 60% rating for this condition.  Under the VASRD, a 60% rating should be 
assigned  when  a  person  requires  “insulin,  restricted  diet,  and  regulation  of  activities 
with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitali-
zations per year or twice a month visits to a diabetic care provider, plus complications 
that would not be  compensable if  separately evaluated.”2  The  DVA’s rating decision 
indicates that the applicant was awarded the 60% rating based primarily upon his own 
statement of his condition.   

 
5. 

Although the DVA assigned the applicant’s DM a 60% rating, as the JAG 
argued, DVA ratings are “not determinative of the same issues involved in military dis-
ability cases.”3  In assigning ratings pursuant to 10 U.S.C. §§ 1201 and 1203 and Chapter 
2.C.2.a.  of  the  PDES  Manual,  the  CPEB  considers  to  what  extent  a  member  is  perma-
nently disabled by a condition that renders him unfit for continued service, whereas the 
DVA considers the extent to which a veteran’s current earning capacity is diminished 

                                                 
2 38 C.F.R. § 4.119. 
3 Lord v. United States, 2 Ct. Cl. 749, 754 (1983). 

by all of his medical conditions.  Therefore, the Board finds that the 60% rating assigned 
by the DVA is not dispositive of whether the 20% rating assigned by the Coast Guard is 
erroneous or unjust.   

 
6. 

The CPEB assessed the applicant’s DM as meeting the standard for a 20% 
disability rating under the VASRD.  As stated in finding 2 above, the Board must pre-
sume that this rating is correct unless the applicant proves otherwise by a preponder-
ance of the evidence.  The medical records before the Board indicate that at the time of 
the applicant’s physical examination for the IMB, his DM was under “very good con-
trol”  with  twice  daily  injections  of  insulin,  appropriate  exercise,  and  dietary  precau-
tions.  Although his CO stated that the applicant was able to perform all the duties of 
his  job,  the  CO  also  stated  that  the  applicant  was  increasingly  absent  from  work  for 
medical reasons.  While there is no evidence in the military or medical records to indi-
cate that, prior to the applicant’s discharge, he was required or should have been told to 
“regulate  his  activities,”  as  is  required  for  a  40%  rating  under  the  VASRD,  that  may 
very well have been the case.  Nor does the record before the Board show that, prior to 
his discharge, he was hospitalized once or twice each year for episodes of ketoacidosis 
or hypoglycemic reactions, as he told the DVA.  While it is possible that the applicant 
was  required  to  “regulate  his  activities”  and  did  periodically  require  hospitalization 
prior to his discharge, the applicant has not submitted evidence on these matters.   

 
Moreover,  the  record  indicates  that  with  the  advice  of  counsel,  the  applicant 
accepted the 20% rating prior to discharge.   The applicant did not explain why, if he 
thought  the  20%  rating  was  too  low,  he  accepted  it  and  waived  his  right  to  formal 
hearing. 

 
Although  the  applicant  has  not  proven  that  the  Coast  Guard  erred  or  acted 
unjustly in assigning him a 20% rating, the Board finds that it would be in the interest of 
justice to grant further consideration to this matter if within 180 days of the date of this 
decision, the applicant is able to submit new, substantial evidence that his DM met the 
criteria for a 40% or 60% disability rating under the VASRD prior to his discharge.  To 
receive further consideration, the applicant needs to provide substantial evidence that 
his activities were “regulated” by his DM in ways that affected his ability to perform his 
Coast Guard duties, either based upon medically indicated advice from his physician at 
the time, or possibly, based upon a subsequent expert opinion from a physician that his 
activities were or should have been so regulated.  The applicant also must explain why 
if the 20% rating was too low, he failed to object to it and even  waived his right to a 
formal hearing. 

 
7. 

The applicant also asked that he be retired as a commander (O-5) because 
at the time of his separation, there was a commander selection board scheduled to con-
vene three months later.  The applicant cited no law that would or could have entitled 
him to be retired or separated at the higher rank, and the Board knows of none.  The 

Board finds that the applicant has not proved by a preponderance of the evidence that 
his  discharge  as  a  lieutenant  commander,  the  highest  grade  in  which  he  served,  was 
erroneous or unjust. 

 
8. 

Accordingly, the applicant’s request that he be retired as a commander (O-
5) should be denied.  With respect to the applicant's request for a higher disability rat-
ing, the Board denies it based upon the current record but will grant further considera-
tion if within 180 days of the date of this decision, the applicant submits to the Board 
new, substantial evidence that his DM met the criteria for a 40% or 60% disability rating 
under the VASRD prior to his discharge.   

 
 
 
 
 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

ORDER 

The application of former xxxxxxxxxxxxxxxxxxxxxxx, USCGR, for the correction 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
of his military record is denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Toby Bishop 

 

 
 Philip B. Busch 

 

 

 

 

 
 
 Nancy L. Friedman