DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-093 
 
Xxxxxxxxxxxx  
  xxxxxxxxxxx 

 

 
 

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 Chair docketed the 
application on April 15, 2005, upon receipt of the completed application. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated February 8, 2006, 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 found 
 
not fit for duty during a physical examination on December 1, 2004.  The examination 
was conducted by order of the BCMR in Docket No. 2004-053.  The applicant desires to 
be evaluated by a medical board and processed under the Physical Disability Evalua-
tion System (PDES) for a discharge or retirement by reason of physical disability.  The 
applicant alleged that the physical examination he received from Dr. N, a Navy doctor, 
pursuant to the Board’s order was “perfunctory and deficient.”  He submitted a copy of 
another physician’s report dated January 12, 2005, to rebut the finding of fitness. 
 

SUMMARY OF PRIOR CASE 

 

In BCMR Docket No. 2004-053, the applicant asked the Board to reinstate him on 
active  duty  in  the  Coast  Guard  as  of  the  date  of  his  release,  June  30,  2002,  so  that  he 
could  be  evaluated  under  the  PDES  for  injuries  he  incurred  in  a  motorcycle  accident 
while serving on extended active duty on January 25, 2001.  He alleged that because of 
those injuries, which included three broken ribs and a fractured clavicle, he developed 

chronic paravertebral spasms and ulnar neuropathy in his elbow.  However, instead of 
being  evaluated  by  an  Initial  Medical  Board  (IMB),  processed  under  the  PDES,  and 
medically separated or retired, he was administratively separated (released from active 
duty into the Reserve) when his active duty contract expired on June 30, 2002.   

 
The applicant alleged that, before his date of discharge, his Coast Guard doctor, 
Dr. R, recognized his condition but refused to process him under the PDES because he 
was performing his assigned duties.  Dr. R decided that because he was performing his 
duties, he was “fit for duty” and not entitled to PDES processing under Article 2.C.2.b. 
of the PDES Manual.  However, Dr. R also noted on a medical board report dated July 
1, 2002, that the applicant’s “prognosis is unknown” and that he “advised the evaluee to 
avoid ladders and strenuous activity pending further elucidation of the medical prob-
lem.”  The applicant alleged that Dr. R’s comments were inconsistent with his finding of 
“fit for duty.”  Because Dr. R found the applicant fit for duty, the report he prepared 
was not processed.  The applicant alleged that he was not fit for duty upon his release 
from active duty on June 30, 2002, and that the presumption of fitness for duty “does 
not  apply  where  as  here  the  disabilities  were  long  standing,  were  refractory  to  medi-
cation, were degenerative and finally interfered with [his] ability to perform his duties,” 
as shown by the limitations Dr. R placed on his activity. 

 
The  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  recommended  that  the 
Board  grant  the  applicant  alternative  relief.    He  alleged  that  Dr.  R  had  acted  in 
accordance  with  PDES  policy  by  not  processing  a  member  who  was  performing  his 
duties and slated for release from active duty for a reason other than his medical con-
dition.  The JAG stated, however, that conducting a physical examination to discover 
the  applicant’s  current  medical  status  and  to  determine  whether  additional  corrective 
action  is  justified  would  be  in  the  interest  of  justice.    The  JAG  argued  that  if  the 
applicant  is  “currently  not  fit  for  full  duty,  then  it  is  appropriate  to  evaluate  him  for 
separation and also to revisit his status at the time of his [release] from active duty.” 

 
The JAG based his recommendation on a memorandum on the case prepared by 
CGPC.    CGPC  alleged  that  although  the  applicant  took  sick  leave  to  attend  physical 
therapy, there “is no evidence of extensive periods of absence from work to convalesce 
as  a  result  of  his  medical  condition.”    Moreover,  CGPC  noted  that  the  applicant  con-
tinued to perform active duty and did not request PDES processing until approximately 
seventeen months after his accident and one month prior to his scheduled release from 
active duty.  Therefore, CGPC argued, “the provisions of Article  2.C.2.b. of the PDES 
Manual were appropriately applied to his circumstances.”1 
                                                 
1 Chapter 2.C.2.b. of the PDES Manual provides that the Coast Guard’s own “disability evaluation system 
[is]  not  to  be  misused  to  bestow  compensation  benefits  on  those  who  are  voluntarily  or  mandatorily 
retiring  or  separating  and  have  theretofore  drawn  pay  and  allowances,  received  promotion,  and 
continued on unlimited active duty status while tolerating physical impairments that have not actually 
precluded  Coast  Guard  service.”    Chapter  2.C.2.b.(1)  provides  that  “[c]ontinued  performance  of  duty 

 
CGPC  stated  that  the  applicant  objected  to  his  doctor’s  finding  of  fitness  and 
requested review by a higher authority.  CGPC stated that the applicant’s requests were 
twice  reviewed  “and  given  due  consideration  in  accordance  with  current  policies.”  
CGPC  stated  that  the  “record  contains  evidence  that  an  IMB  was  initiated  on  the 
Applicant …, but was not completed.  The local medical authority may have been ini-
tially supportive of the Applicant’s position that an IMB was warranted.  However, this 
partially completed IMB supports evidence that the medical authority found the Appli-
cant fit for duty.” 

 
CGPC stated that although the Coast Guard “acted appropriately in separating 
the Applicant in a fit for duty status, I believe there is reasonable uncertainty that the 
Applicant remains in this status.  The record indicates that his condition may have been 
slowly  declining  at  the  time  he  left  active  duty  (though  not  to  the  point  that  his  per-
formance was affected).”  CGPC stated that the applicant is currently a civilian employ-
ee of the Coast Guard and a member of the IRR and recommended that the Board order 
the Coast Guard to conduct a physical examination of the applicant.  CGPC stated that, 
if  the  examination  revealed  no  currently  disabling  conditions,  no  corrections  to  his 
record would be made.  CGPC stated that if the applicant was found to have a disabling 
condition, the Coast Guard would convene an IMB and, if the IMB determined that the 
applicant  was  not  fit  for  duty  on  June  30,  2002,  the  Coast  Guard  would  process  the 
applicant  in  accordance  with  the  PDES  “for  possible  separation  or  retirement  due  to 
physical disability.”  CGPC noted that if the IMB found that the applicant was  fit for 
duty on June 30, 2002, but is no longer fit for duty, he would be processed for discharge 
from the Reserve. 

 
The BCMR noted that Dr. R’s finding that the applicant was fit for duty and for 
separation  in  June  2002  and  that  he  was  not  entitled  to  evaluation  by  an  IMB  was 
entitled  to  a  presumption  of  regularity.2    The  Board  noted  that  during  the  seventeen 
months prior to his release from active duty, the applicant had complained of back pain 
and numbness in his left arm and fingers, yet he had continued to work regularly and 
took sick leave to attend medical appointments.  Moreover, the applicant had neither 
alleged nor proven that his symptoms caused him to miss many days at work or that 
they  significantly  interfered  with  his  performance  of  his  assigned  duties.    The  Board 
noted  that  in  May  2002,  Dr.  R  had  reported  that  although  the  applicant  had  chronic 
pain, he “is able to work daily and has no deployment limits,” which supported Dr. R’s 
determination that the applicant was fit for duty, as defined in Chapter 2.A.15. of the 
PDES  Manual.    The  Board  also  noted,  however,  that  in  June  2002,  Dr.  R  began  to 
                                                                                                                                                             
until a service member is scheduled for separation or retirement for reasons other than physical disability 
creates a presumption of fitness for duty.” 
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”). 

prepare an IMB report for the applicant, which suggested that at one point Dr. R had 
substantial doubts about the applicant’s fitness for duty.  In addition, the Board noted 
that, at the time of the applicant’s release from active duty, Dr. R advised him to “avoid 
ladders  and  strenuous  activity  pending  further  elucidation  of  the  medical  problem.”  
Therefore,  although  the  applicant  was  performing  his  duties,  which  consisted  of 
deskwork,  the  Board  found  that  he  might  not  have  been  fit  for  the  more  strenuous 
duties of his rank. 

 
The  Board  found  that  the  applicant’s  case  clearly  fell  within  the  parameters  of 
Chapter 2.C.2.b., because he continued to perform his assigned duties adequately while 
tolerating his physical impairments, and there was no evidence of “acute, grave illness 
or injury, or other deterioration of [his] condition … immediately prior to or coincident 
with  processing  for  separation.”    The  Board  also  noted  that  service-related  medical 
conditions that become disabling after separation or retirement are properly handled by 
the disability evaluation system of the Department of Veterans’ Affairs. 

 
 The Board concluded that the applicant had not proved by a preponderance of 
the evidence that Dr. R erred in finding him fit for duty and release or that Dr. R erred 
in not processing him under the PDES.  However, the Board found that Dr. R had sub-
stantial doubts about his fitness for duty prior to his release and that he was suffering 
from significant impairments that might have interfered with his performance of duty 
in  a  more  physically  demanding  assignment.    Therefore,  the  Board  agreed  with  the 
Coast Guard and ordered it to conduct a physical examination of the applicant and, if 
indicated, process him under the PDES. 

 

SUMMARY OF THE RECORD 

 
 
From 1990 to 1999, the applicant completed almost ten years of active duty as an 
officer in the Coast Guard.  He resigned and was honorably separated on August 30, 
1999.    However,  he  joined  the  Reserve  and  on  May  1,  2000,  began  serving  on  an 
extended active duty contract with a term of two years and two months.   
 
 
On  January  25,  2001,  the  applicant  fell  off  his  motorcycle  when  he  hit  a  curb.  
Hospital xrays showed “a comminuted left mid clavicular fracture, as well as multiple 
fractures involving the 4th, 5th, and 6th ribs,” but no injuries to the spine or brain. He was 
placed in a limited duty status. 
 

On  February  2,  2001,  the  applicant  sought  treatment  for  pain  in  the  upper 
thoracic area and his left elbow.  Xrays of the elbow were “negative.”  A CT scan of the 
thoracic spine on February 7, 2001, showed no fracture but noted “mild marginal osteo-
phyte formation anteriorly in the upper thoracic region.”   
 

 
While still in a sling in February 2001, the applicant began complaining of pain in 
his upper and mid back.  The doctor noted that he was taking Motrin and Vicodin for 
pain  and  that  the  Flexeril  he  had  prescribed  for  the  applicant’s  back  spasms  did  not 
seem  to  help.    The  doctor  prescribed  Skelaxin  for  the  back  spasms  and  referred  the 
applicant to a physical therapist.  On February 27, 2001, the applicant also complained 
of swelling in the ulnar aspect of his left wrist.  At a follow-up examination on March 
23, 2001, the applicant was found to be doing well, as he had “essentially no pain over 
the  left  clavicle”  and  an  xray  showed  “excellent  callus  formation.”    He  was  released 
from further care, but on April 20, 2001, he requested chiropractic treatment, which was 
authorized. 
 

Throughout  2001  and  2002,  the  applicant  continued  his  chiropractic  care  and 
physical  therapy.    He  also  continued  to  work  full  time  and  used  sick  leave  to  attend 
medical  appointments.    He  reported  continuing  symptoms,  including  back  spasms; 
pain in his upper back, neck, and left shoulder; and tingling in his left arm.  He reported 
that work aggravated his symptoms because he sat at a computer most of the time.  
 

Beginning in November 2001, the applicant complained of loss of feeling in his 
left arm and fingers and on the left side of his back.  He stated that he continued to have 
pain where his ribs had broken and muscle spasms near the scapula.   

 
On January 7, 2002, the applicant told a doctor that his arm symptoms had con-
tinued,  with  intermittent  numbness  in  two  left  fingers  and  sometimes  the  entire  arm.  
The  doctor  referred  him  to  an  orthopedist.    On  January  28,  2002,  the  orthopedist 
reported that the applicant had developed numbness in his left forearm and ring and 
little  fingers  and  complained  of  some  continuing  pain  and  occasional  tingling  “in  the 
left side of the thoracic cage.”  The orthopedist provisionally diagnosed the applicant 
with an “ulnar neuropathy at the elbow”3 and referred him to a neurologist for “consul-
tation and consideration of nerve conduction studies.” 

 
On  March  13,  2002,  a  neurologist  reported  that  the  applicant  was  still  com-
plaining of intermittent back and neck pain and numbness and tingling in his left arm 
and fingers.  On April 24, 2004, following electrodiagnostic studies of the left arm, the 
neurologist diagnosed the applicant as having a “left ulnar neuropathy at the elbow.”  
On May 6, 2002, xrays of the applicant’s shoulder and left wrist were “normal.”  The 
applicant’s  orthopedist  recommended  that  he  seek  help  at  a  pain  clinic  because,  he 
stated, he did “not believe that there are any further orthopedic interventions to con-
sider.”    The  orthopedist  stated  that  the  applicant’s  primary  complaint  was  “pain  and 
                                                 
3 Ulnar neuropathy is a functional disturbance of the ulnar nerve.  The ulnar nerve is a general sensory 
and motor nerve that begins at the spine in the C7-T1 area (bottom of the cervical spine and top of the 
thoracic  spine)  and  distributes  to  the  skin  on  front  and  back  of  the  medial  part  of  hand,  some  flexor 
muscles on the front of the forearm, many short muscles of the hand, the elbow joint, and many joints of 
the hand. Dorland’s Illustrated Medical Dictionary (29th ed. 2000), pp. 1204, 1212. 

paresthesia  [numbness]  radiating  around  his  left  lateral  chest  wall,”  which  likely 
resulted from his broken ribs. 

 
On May 8, 2002, Dr. R noted that the applicant consulted him about “his future 
in the USCG.”  The doctor noted that he had chronic pain but “is able to work daily and 
has no deployment limits.”  

 
On  May  14,  2002,  the  applicant  told  a  doctor  that  he  was  frustrated  by  his 
continuing symptoms  and felt depressed.  He reported feeling a burning sensation in 
his left shoulder and discomfort in the left thoracic back, which he described as “hot, 
burning, and searing.”  He also reported muscle spasms in his left back and shoulder 
blade  area.    The  doctor  diagnosed  him  with  chronic  thoracic  pain,  secondary  to  his 
motor vehicle accident, and depression. 

 
On June 12, 2002, the applicant requested an IMB.  Dr. R noted the applicant’s 
continuing physical complaints, referred him to a pain clinic, ordered another MRI, and 
recommended  regular  deep  water  therapy  and  pain  management  therapy,  but  also 
noted that he was “fit for discharge based upon [Article] 2.C.2.b. per [Dr. J].” 

 
On June 18, 2002, the applicant’s command  asked CGPC to extend his contract 
for  three  months  for  unstated  medical  reasons.    On  June  19,  2002,  CGPC  denied  the 
request.  CGPC stated that the applicant was presumed fit for duty absent “a serious 
injury,  illness,  or  disease  discovered  upon  separation  processing  or  which  has  been 
aggravated by active service and would otherwise lead to termination of service with 
physical  disability.”    CGPC  noted  that  it  had  offered  the  applicant  another  two-year 
contract, which he had not yet signed. 

 
On  June  26,  2002,  the  applicant  sent  a  letter  to  CGPC  requesting  a  ninety-day 
extension so that he could be processed under the PDES and complete medical appoint-
ments.    His  commanding  officer  strongly  supported  his  request.    On  June  28,  2002, 
CGPC denied the request, citing the message of June 19, 2002, and stating that a “fur-
ther discussion with the [Executive Officer of the applicant’s unit] on 27 Jun 2002 indi-
cates an IMB will not be submitted.”  CGPC stated that if the applicant wanted to con-
tinue in his position, the minimum term of extension allowed was twelve months.  The 
applicant  replied  by  fax  the  same  day.   He wrote that  he  was  “not  physically  able  to 
complete an active duty extension of 12 months”; that he “was told by [Dr. R that] both 
a  separation  physical  and  medical  board  would  be  initiated  28  Jun  02”;  and  that, 
although CGPC had indicated that he was being denied a medical board, he was cur-
rently at the clinic for completion of the medical board.  A copy of a Report of Medical 
History  form  that  the  applicant  filled  out  on  June  28,  2002,  shows  that  he  checked 
“Medical Board” as the purpose of the examination. 

 

On  June  28,  2002,  Dr.  R  completed  the  applicant’s  physical  examination.  His 
report indicates that it was conducted because of the applicant’s upcoming release from 
active duty (not pursuant to a medical board).  Dr. R noted that the applicant had a full 
range of motion in his left shoulder, elbow, and wrist but tender sites and paresthesia 
around the mid thoracic spine and left scapula, “hypoaesthesia l. ulnar distribution,”4 
and “chronic pain and residual neuropraxia.”5  Dr. R recommended that the applicant 
continue treatment at a pain clinic and seek physical therapy and deep water exercise.  
However, he also noted that the applicant was fit for duty or for separation. 

 
At some point, Dr. R completed an undated IMB report in which he found that 
the  applicant’s  medical  conditions  included  “para-spinous  and  peri-scapular  pain 
coupled  with  ‘depression’  and  sleep  maintenance  disorder  [that]  are  suspicious  for  a 
Myofascial  Syndrome,”  and  “left  cubital  tunnel  syndrome  (mild  and  related  to  the 
[motor  vehicle  accident]).”    Dr.  R  also  wrote  that  the  applicant’s  “prognosis  is 
unknown” but that he was fit for full duty and for release from active duty.  Dr. R also 
noted that he “advised the [applicant] to avoid ladders and strenuous activity pending 
further  elucidation  of  the  medical  problem.”    In  addition,  Dr.  R  noted  that  “recom-
mended evaluations are in abeyance” because the applicant “elected to separate from 
the military.” 

 
On June 30, 2002, the applicant was honorably released from active duty into the 

Individual Ready Reserve (IRR). 
 
On July 2, 2002, the applicant signed a statement indicating that he did not agree 
 
with Dr. R’s findings.  He also wrote that he had never recovered from his accident and 
that he had been denied a medical board. 
 
New Medical Records Not Considered in BCMR Docket No. 2004-053 
 
 
On December 1, 2004, the applicant underwent a physical examination at a Navy 
hospital pursuant to the Board’s order in Docket No. 2004-053.  Dr. N reported that the 
applicant  is  “not  sure  why  he  is  here.    Apparently  had  complicated  med  board  and 
discharge from Coast Guard last year, and was told to get repeat physical to document 
his current status. … He says he currently has pain in back and most of his muscles ache 
on a regular basis.  He also notes depressive [symptoms], and allergic rhinitis.”  Dr. N 
wrote  that  the  applicant  complained  of  intermittent  tingling  in  his  shoulder  where  it 
had  been  fractured  and  “chronic  muscle  pain  and  aches”  but  had  “no  problems  with 

                                                 
4 Hypoaesthesia is reduced feeling or sensation. Dorland’s Illustrated Medical Dictionary (29th ed. 2000), pp. 
623, 860. 
5 Ulnar neuropraxia is a loss of conduction in an intact ulnar nerve. Dorland’s Illustrated Medical Dictionary 
(29th ed. 2000), p. 1449. 
 
 

motion or strength in arms or legs, [or] trouble with balance or gait.”  Tests showed that 
the applicant had a free range of motion and normal sensation in his extremities.  Dr. N 
wrote that the applicant “has multiple complaints and an unusual history, but his exam 
today  seems  normal.    Most  of  his  complaints  are  subjective.    No  objective  findings 
today.  He is apparently being seen by a rheumatologist with a diagnosis of myofascial 
pain syndrome.  He is of course on several medicines that may be masking his symp-
toms.”    The  applicant’s  medications  were  listed  as  Skelaxin,  Prozac,  Lodine,  Claritin, 
Flonase, Neurontin, and Maxalt.  Dr. N released the applicant without limitations. 
 

On  December  2,  2004,  in  response  to  a  query  from  CGPC  as  to  the  applicant’s 
fitness for duty, a lieutenant at the Navy hospital stated, “I just spoke with [Dr. N] and 
his response to your question is in this form:  If [the applicant] showed up today to gain 
entrance  to  the  Coast  Guard,  he  would  not  advise  that  he  be  admitted  to  the  service 
based upon his numerous complaints that can’t be supported with physical findings on 
his exam.  On the other hand, if [the applicant] were on active duty today and getting 
out  tomorrow,  he  WOULD  NOT  recommend  a  Medical  Board  to  evaluate  him;  he 
would  indicate  that  [the  applicant]  is  medically  eligible  to  separate.”    On  March  17, 
2005, in response to another query from CGPC, the lieutenant reported that Dr. N stated 
that if the applicant had been on active duty at the time of the physical examination, 
Dr. N would have found him fit for duty. 
 
 
On January 12, 2005, the applicant’s private physician, Dr. A, wrote that he had 
been treating the applicant for one year for chronic mechanical thoracic back pain, left 
ulnar  neuropathy,  hearing  loss  and  tinnitus,  migraine  headaches,  and  depression.  
Dr. A  wrote  that  he  had  prescribed  the  applicant  Neurotin  for  pain  and  neuropathy; 
Skelaxin, as needed, for back pain and muscle relaxation; anti-inflammatories such as 
Vioxx and Naproxen; Maxalt for migraine headaches; and Prozac for depression associ-
ated with chronic pain.  Dr. A stated that the applicant had tried physical therapy, injec-
tions of cortisone, and an electronic muscle stimulator for his back pain.  Dr. A stated 
that  the  applicant  “has  chronic  mechanical  back  pain,  left  ulnar  nerve  neuropathy, 
sensorineural high frequency hearing loss, and frequent migraine headaches.”  He also 
noted that the applicant has received a 30% combined disability rating from the DVA. 
 
On  June  20,  2003,  the  DVA  awarded  the  applicant  a  30%  combined  disability 
 
rating, including 10% for depression, 10% for tinnitus, 10% for headaches, and 0% (zero) 
for  ulnar  neuropathy  and  for  healed  fractures  of  his  fourth,  fifth,  and  sixth  ribs  and 
fracture of his left clavicle.  The ratings for tinnitus and headaches were “continued” as 
they had already been granted following the applicant’s discharge in 1999.  The DVA 
stated  that  the  ulnar  neuropathy  received  a  0%  rating  because  the  applicant’s  DVA 
examination  revealed  “no  current  functional  deficit”  and  because  a  nerve  conduction 
study showed that his condition was mild.  The DVA stated that the applicant received 
a 0% rating for his healed clavicle fracture because the DVA examination revealed “no 
range of motion deficit and no pain, fatigue, weakness, lack of endurance or incoordina-

tion on ranging”; because a “[n]eurological examination shows no deficit”; and because 
xrays showed that the fracture had healed with no malunion or nonunion.  The DVA 
stated that the applicant received a 0% rating for his rib fractures because xrays showed 
that the fractures were healed and the DVA examination found “no functional impair-
ment.”  The DVA granted the applicant a 10% rating for depression because his exam-
ination  revealed  “mild  symptomatology”  and  because  “depression”  was  noted  in  his 
service medical records although there were no psychiatric records. 
 
 
appeal of the assigned ratings.  
 

On October 14, 2005, the DVA notified the applicant that it would consider his 

VIEWS OF THE COAST GUARD 

 
On September 2, 2005, the JAG recommended that the Board deny the applicant’s 
 
request.  He stated that the applicant was examined by a Navy doctor who found him 
fit for duty.  The JAG argued that “[w]hile Applicant’s civilian doctor addresses Appli-
cant’s medical conditions, he does not address Applicant’s fitness of duty.  Regardless, 
it  is  the  military  doctor  who  has  the  greater  expertise  in  making  a  fitness  for  duty 
determination.” 
 
 
The JAG attached to his advisory opinion and adopted a memorandum on the 
case prepared by CGPC.  CGPC stated that after Dr. N completed his report, he con-
firmed by email that the applicant was fit for duty.  CGPC stated that the applicant has 
not  proved  that  Dr.  N’s  examination  was  cursory  or  deficient.    CGPC  stated  that 
“Dr. N’s evaluation took the Applicant’s medical history and current diagnosis under 
consideration and found that at the time of his evaluation, his physical condition would 
not preclude him from performing military duties.”  CGPC stated that it does not dis-
pute the fact that the applicant continues to have physical ailments but argued that he 
has  not  proved that on  June  30,  2002,  he  “suffered  from  a  condition  that  would  have 
prevented  him  from  maintaining  a  fit  for  full  duty  status  or  rendered  him  unable  to 
perform military duties.” 
 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On October 11, 2005, the applicant responded to the views of the Coast Guard.  
He repeated his allegation that at the time of his release from active duty on June 30, 
2002, he was unfit for duty.  He pointed out that Dr. N noted that his medications may 
have  been  masking  his  conditions  during  the  physical  examination  on  December  1, 
2004.  He reminded the Board that the DVA has awarded him a 30% disability rating. 
 

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 Personnel Manual  
 
 
Article 12.A.10.b. states that “[a]n officer being separated shall schedule any nec-
essary physical examination so it is completed at least 60 days before the effective date 
of separation or release, although Commander (CGPC-opm) will not delay a separation 
or release date solely because the officer failed to complete a scheduled physical exami-
nation.  A scheduled separation or release date may be delayed only if a question exists 
about a member’s unfitness for continued service so as to require convening a medical 
board under the [PDES] … .” 
 
Article 12.A.10.f. provides that if an officer’s physician finds that he is qualified 
 
for separation or release, and the officer objects, the medical record and any statement 
submitted by the officer are forwarded to CGPC for review.  
 
Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
Article 3.F. of the Medical Manual provides that members  with  medical  condi-
tions that are disqualifying for retention in the Service shall be referred to an IMB by 
their  commands.    Article  3.F.12.  provides  the  minimum  ranges  of  motion  that  each 
party of the body must have for retention on active duty.  Article 3.F.15.n.(1)  states that 
neuralgia  (nerve  pain)  may  be  disqualifying  when  “symptoms  are  severe,  persistent, 
and not responsive to treatment.”  Article 3.F.15.n.(2) states that neuritis (inflammation 
of  a  nerve  causing  pain  and  numbness)  may  be  disqualifying  when  “manifested  by 
more than moderate, permanent functional impairment.”  Article 3.F.13.c. provides that 
back  pain  caused  by  a  herniated  disc  may  be  disqualifying  if  there  are  “[m]ore  than 
mild  symptoms  following  appropriate  treatment  or  remediable  measures,  with  suf-
ficient objective findings to demonstrate interference with the satisfactory performance 
of  duty.”    Article  3.A.19.c.(1)  states  that  myofascial  syndrome  may  be  disqualifying 
“when not controlled by medication or with reliably diagnosed depression.” 

 

Article  3.D.  contains  the  physical  standards  for  enlistment,  which  are  more 
stringent than the physical standards for retention listed in Article 3.F.  Article 3.D.34. 
states that that any “[c]omplaint of a disease or injury of the spine or sacroiliac joints 
with  or  without  objective  signs,  that  has  prevented  the  individual  from  successfully 
following  a  physically  active  vocation  in  civilian  life,  or  that  is  associated  with  pain 
referred to the lower extremities, muscular spasms, postural deformities, or limitation 
of motion” may cause a candidate to be rejected for enlistment or appointment.  Article 
3.D.27.h.  provides  that  “[p]aralysis,  weakness,  lack  of  coordination,  chronic  pain,  or 
sensory disturbances” are causes for rejection. 

 
Article  3.F.1.c.  of  the  Medical  Manual  states  that  members  ”are  ordinarily  con-
sidered fit for duty unless they have a physical impairment (or impairments) which in-
terferes with the performance of the duties of their grade or rating.  A determination of 
fitness or unfitness depends upon the individual’s ability to reasonably perform those 
duties.” 
 

Article 3.B.5. provides that when an officer  objects to a  finding of qualified for 
separation or release, CGPC will review the record to make a final determination as to 
whether the officer will be separated or processed under the PDES. 

 
Article 3.B.6. provides that “[w]hen a member has an impairment (in accordance 
with section 3-F of this Manual) an Initial Medical Board shall be convened only if the 
conditions listed in paragraph 2-C-2.(b) [of the PDES Manual] are also met.  Otherwise 
the member is suitable for separation.” 
 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
 
Chapter 2.A.15. of the PDES Manual defines “fit for duty” as “[t]he status of a 
member who is physically and mentally able to perform the duties of office, grade, rank 
or rating.” 
 

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 2.C.2. states the following: 
 
b. 
The law that provides for disability retirement or separation (10 U.S.C., chapter 
61)  is  designed  to  compensate  members  whose  military  service  is  terminated  due  to  a 
physical disability that has rendered him or her unfit for continued duty.  That law and 
this disability evaluation system are not to be misused to bestow compensation benefits 
on those who are voluntarily or mandatorily retiring or separating and have theretofore 
drawn  pay  and  allowances,  received  promotions,  and  continued  on  unlimited  active 

(a) 

(b) 

the  member,  because  of  disability,  was  physically  unable  to  perform 

duty status while tolerating physical impairments that have not actually precluded Coast 
Guard service.  The following policies apply. 
 
   (1) 
Continued performance of duty until a service member is scheduled for separa-
tion or retirement for reasons other than physical disability creates a presumption of fit-
ness for duty.  This presumption may be overcome if it is established by a preponderance 
of the evidence that: 
 
 
adequately in his or her assigned duties; or 
 
 
acute,  grave  illness  or  injury,  or  other  deterioration  of  the  member’s 
physical condition occurred immediately prior to or coincident with processing for sepa-
ration or retirement for reasons other than physical disability which rendered the service 
member unfit for further duty. 
 
    (2)  A  member  being  processed  for  separation  or  retirement  for  reasons  other  than 
physical disability shall not be referred for disability evaluation unless the conditions in 
paragraphs 2.C.2.b.(1)(a) or (b) are met. 
 
If a member being processed for separation or retirement for reasons other than 
c. 
physical  disability  adequately  performed  the  duties  of  his  or  her  office,  grade,  rank  or 
rating, the member is presumed fit for duty even though medical evidence indicates he 
or she has impairments. 

•  •  • 

e. 
An  evaluee  whose  manifest  or  latent  impairment  may  be  expected  to  interfere 
with the performance of duty in the near future may be found “unfit for continued duty” 
even  though  the  member  is  currently  physically  capable  of  performing  all  assigned 
duties.  Conversely, an evaluee convalescing from a disease or injury which reasonably 
may be expected to improve so that he or she will be able to perform the duties of his or 
her office, grade, rank, or rating in the near future may be found “Fit for Duty.” 
 
The following standards and criteria will not be used as the sole basis for making 
f. 
determinations that an evaluee is unfit for continued military service by reason of physi-
cal disability. 
 
   (1) 
geographic location and under every conceivable circumstance. … 
 
   (2) 

Inability to perform all duties of his or her office, grade, rank or rating in every 

Inability to satisfy the standards for initial entry into military service … . 

 

•  •  • 

Inability to qualify for specialized duties requiring a high degree of physical fit-

   (4) 
ness, such as flying … . 
 
The presence of one or more physical defects that are sufficient to require referral 
   (5) 
for evaluation or that may be unfitting for a member in a different office, grade, rank or 
rating. 
 
   (6) 
status. 
 

Pending  voluntary  or  involuntary  separation,  retirement,  or  release  to  inactive 

Chapter  3.D.7.  states  that  a  “member  who  is  being  processed  for  separation … 
shall not normally be referred for physical disability evaluation. … [A]bsence of a sig-
nificant  decrease  in  the  level  of  a  member’s  continued  performance  up  to  the time  of 
separation or retirement satisfies the presumption that the member is fit to perform the 
duties of his or her office, grade, rank or rating (see paragraph 2.C.2.).” 
 

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  Central  Physical 
Evaluation  Board  (CPEB).    The  member  is  advised  about  the  PDES  and  permitted  to 
submit a response to the IMB report.   
 
 
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.2.a. provides that the “sole stan-
dard” 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 disease or injury incurred or aggravated through mili-
tary 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 
a physical disability rating.  Chapter 4.A.14.c. provides that if the member objects to a 
CPEB finding, he may demand a formal hearing by the FPEB.    Chapter 5.C.11.a. pro-
vides that the FPEB shall issue findings and a recommended disposition of each case in 
accordance  with  the  provisions  of  Chapter  2.C.3.a.  (see  above).    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.   
 
DoD Instruction 1332.39 
 
 
Paragraph E2.A1.1.20.2. of Enclosure 2 of this instruction, which the Coast Guard 
uses  as  non-binding  guidance,  states  with  respect  to  a  member’s  back  pain  that 
“[d]emonstrable pain  on spinal motion associated with positive radiographic findings 
shall warrant a 10 percent rating.  If paravertebral muscle spasms are also present, a 20 
percent rating may be awarded.  Such paravertebral muscle spasms, however, must be 
chronic and evident on repeated examinations.” 
 

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  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair, 
acting pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 

 
3. 

The  Board  begins  each  case  presuming  that  the  applicant’s  records  are 
correct  and  that  Government  officials,  including  doctors,  have  acted  correctly  and  in 
good  faith.6    In  BCMR  Docket  No.  2004-053,  the  Board  found,  based  on  the  record  at 
that time, that the applicant had not proved by a preponderance of the evidence that the 
Coast Guard’s refusal to process him under the PDES prior to his release from active 
duty was erroneous or unjust.  This Board concurs in that finding because, although the 
applicant was being treated for pain and tingling, he served regularly on active duty up 
until the time he opted to leave active duty by rejecting another active duty contract, 
and because his doctor found him fit for duty and noted that there were no limitations 
on  his  deployment.    Chapter  2.C.2.b.  of  the  PDES  Manual  provides  that  the  Coast 
Guard’s  own  “disability  evaluation  system  [is]  not  to  be  misused  to  bestow  compen-
sation benefits on those who are voluntarily or mandatorily retiring or separating and 
have  …  continued  on  unlimited  active  duty  status  while  tolerating  physical  impair-
ments that have not actually precluded Coast Guard service.”  Service-related medical 
conditions that affect earning capacity after separation from active duty are handled by 
the disability evaluation and benefits system of the Department of Veterans’ Affairs. 

 
4. 

In BCMR Docket No. 2004-053, the Board ordered the Coast Guard to con-
duct a physical examination of the applicant to determine his fitness for duty because 
the record showed that Dr. R had doubts about his fitness for duty prior to his release 
on  June  30,  2002,  and  that  the  applicant  was  suffering  from  impairments  that  might 
have interfered with his performance of duty in a more physically demanding assign-
ment.    The  Coast  Guard  implemented  the  Board’s  order  by  having  Dr.  N  conduct  a 
physical examination of the applicant on December 1, 2004.  Dr. N concluded that the 
applicant was fit for duty on that date and that he would not recommend evaluation by 
a medical board.   

 

                                                 
6  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”). 

5. 

Dr. N also  noted that he would  not recommend the applicant for  enlist-
ment “based upon his numerous complaints that can’t be supported with physical find-
ings on his exam.”  In essence, this means that Dr. N found the applicant fit for duty but 
not fit for enlistment.  The physical standards for enlistment and those for retention on 
active  duty  are  quite  different.    The  physical  requirements  for  enlistment  listed  in 
Article 3.D. of the Medical Manual are more stringent than those for retention listed in 
Article 3.F.  Therefore, Dr. N’s statement that he would not recommend the applicant 
for enlistment does not contradict his finding that the applicant was fit for duty. 

 
6. 

The applicant alleged that his examination by Dr. N on December 1, 2004, 
was “perfunctory and deficient” and that Dr. N’s finding that the applicant was fit for 
duty  is  erroneous.      The  applicant  alleged  that  the  report  of  Dr.  A  dated  January  12, 
2005, proves that he was not fit for duty.  It is clear from Dr. A’s report that the appli-
cant was being treated for chronic mechanical thoracic back pain, left ulnar neuropathy, 
hearing  loss,  tinnitus,  migraine  headaches,  and  depression.    However,  being  “fit  for 
duty” does not mean that a member has no impairments.7  Members may be fit for duty 
and  retained  on  active  duty  without  PDES  processing  even  though  they  suffer  from 
impairments  as  long  as  those  impairments  do  not  prevent  them  from  reasonably 
performing their assigned duties.8  Nothing in Dr. A’s report proves that the applicant’s 
impairments  rendered  him  incapable  of  reasonably  performing  the  duties  of  a 
lieutenant in the Coast Guard. 

 
7. 

In particular, the Board notes that Dr. A did not describe any of the appli-
cant’s conditions as severe or debilitating.  Under Article 3.F.12. of the Medical Manual, 
nerve pain may be disqualifying for retention when “symptoms are severe, persistent, 
and not responsive to treatment.”  Under Article 3.F.15.n.(2), nerve inflammation that 
causes pain and numbness may be disqualifying “when manifested by more than mod-
erate,  permanent  functional  impairment.”    The  Medical  Manual  does  not  specifically 
address the source of the applicant’s back pain, but back pain from a herniated disc is 
only disqualifying if there are “[m]ore than mild symptoms … with sufficient objective 
findings  to  demonstrate  interference  with  the  satisfactory  performance  of  duty.”9  
Moreover, DoD Instruction 1332.39, which the Coast Guard uses as guidance, requires 
“demonstrable pain on spinal motion associated with positive radiographic findings” to 
award even a 10% rating.  Dr. A’s report does not prove that either the applicant’s ulnar 
neuropathy  or  thoracic  pain—the  residual  symptoms  stemming  from  his  motorcycle 
accident—meets  these  standards.    Nor  did  Dr.  A  state  that  the  applicant’s  conditions 
prevent him from working. 

 

                                                 
7 Chapter 2.A.15. of the PDES Manual defines “fit for duty” as “[t]he status of a member who is physically 
and mentally able to perform the duties of office, grade, rank or rating.” 
8 Medical Manual, Article 3.F.1.c. 
9 Medical Manual, Article 3.F.13.c. 

8. 

The applicant argued that the fact that the DVA has awarded him a 30% 
disability rating proves that he is not fit for duty and should have been processed under 
the PDES.  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.”  Under Chapter 
2.C.2.a.  of  the  PDES  Manual,  the  Coast  Guard  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,  disability  ratings  assigned  by  the  DVA  do  not  prove  that  the 
Coast Guard’s determination that the applicant was fit for duty is erroneous or unjust.  
Moreover,  the  Board  notes  that  the  applicant’s  30%  combined  rating  includes  a  10% 
rating for tinnitus, which was diagnosed before the applicant’s return to active duty in 
May 2000 and did not interfere with his performance of duty; a 10% rating for head-
aches, which were also diagnosed before his return to active duty in May 2000 and did 
not interfere with his performance of duty; and a 10% rating for depression.  There is no 
evidence in the record that the applicant’s symptoms of depression interfered with his 
performance of duty.  Furthermore, the conditions for which the applicant sought PDES 
processing  in  BCMR  Docket  No.  2004-053  and  those  which  caused  Dr.  R  to  express 
some doubt about his fitness for duty were the physical conditions resulting from his 
motorcycle  accident—i.e.,  ulnar  neuropathy  and  healed  fractures  of  his  clavicle  and 
ribs—and the DVA has rated each of those at 0%.  Moreover, the DVA’s examination 
results strongly support Dr. N’s finding that the applicant was fit for duty as the DVA 
examination found “no current functional deficit” due to the ulnar neuropathy, which 
tests  revealed  was  mild;  “no  range  of  motion  deficit  and  no  pain,  fatigue,  weakness, 
lack of endurance or incoordination on ranging” due to the healed clavicle fracture; and 
“no functional impairment” due to the healed rib fractures. 

 
9. 

Dr.  N—who,  as  a  Navy  doctor,  presumably  has  more  experience  than 
Dr. A in determining whether members are fit for duty—found that the applicant had 
“no problems with motion or strength in arms or legs, [or] trouble with balance or gait.”  
Under  Articles  3.F.12.  and  3.F.13.  of  the  Medical  Manual,  the  strength  and  range  of 
motion of a member’s limbs and torso are important concerns in determining his fitness 
for  duty.    Dr.  N  reported  that  the  applicant  had  a  free  range  of  motion  and  normal 
sensation in his extremities.  Dr. N did note that the applicant’s symptoms might have 
been masked by his medications.  However, he still found the applicant fit for duty and 
stated  that  he  would  not  recommend  that  the  applicant  be  evaluated  by  a  medical 
board.    The  applicant  has  not  proved  that  his  physical  examination  by  Dr.  N  was 
deficient.    Nor  has  the  applicant  proved  that  Dr.  N  failed  to  exercise  sound  medical 
judgment in finding that he was fit for duty. 

 
10.  While  it  clear  from  the  record  that  the  applicant  suffers  from  certain 
impairments, he has not proved by a preponderance of the evidence that Dr. N erred in 
finding  him  fit  for  duty  or  in  not  recommending  that  he  be  evaluated  by  a  medical 

board.    Nor  has  he  proved  that  the  Coast  Guard  committed  an  error  or  injustice  in 
refusing to process him under the PDES.   

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

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The  application  of  xxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

ORDER 

 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 Kevin M. Walker 

 

 

 
 Richard Walter 

 

 

 
 Kenneth Walton