DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-124 
 
XXXXXXXXXXXXXX 
xxxxxxxxxxxxxxx (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  June  15,  2005,  upon  receipt  of  the  applicant’s  completed  application  and 
military and medical records.1 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  April  5,  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 retired 
from  the  Coast  Guard  due  to  physical  disability  on  June  20,  2000  rather  than  having 
been  separated  with  severance  pay.      The  applicant  was  discharged  from  the  Coast 
Guard with a 10% disability rating for Post Traumatic Stress Disorder (PTSD) and a 10% 
disability rating for Intervertebral Disc Syndrome, for a combined 20% disability rating, 
for which he received severance pay.  To be retired by reason of physical disability, the 
applicant's disability rating must be at least 30% disabling.  
 
The applicant stated that he believed that the Central Physical Evaluation Board 
 
(CPEB)  2 did not properly evaluate his PTSD because if they had, he would have either 

                                                 
1   The BCMR received the application on December 7, 2004. 
 
2   The Central Physical Evaluation Board is a permanently established administrative body convened to 
evaluated on a records basis the fitness for duty of active and reserve members and the fitness for duty of 

been placed on the temporary disability retired list or the permanent disability retired 
list.  He asserted that his medical records clearly showed that he had severe PTSD and a 
55 score on the Global Assessment of Functioning Evaluation.  He stated that both the 
Coast  Guard  and  the  Department  of  Veterans  Affairs  (DVA)  use  the  same  criteria  in 
evaluating  disabilities,  but  the  DVA  rated  his  PTSD  as  30%  disabling  and  his  lumbar 
condition  as  20%  disabling  for  a  combined  disability  rating  of  50%  for  the  two 
disabilities.    Therefore,  the  applicant  argued  that  based  on  the  DVA  ratings  his 
discharge from the Coast Guard with severance pay was inappropriate and he should 
have been retired by reason of physical disability. 
 
 
The applicant stated that he did not discover the alleged error until November 
30, 2004.   He stated that it would be in the interest of justice for the Board to waive the 
three-year statute of limitations and consider his application because he was not aware 
of the existence of the Board until recently and no one in the Coast Guard advised him 
about it.      
 

  

SUMMARY OF THE RECORD 

 

On  April  16,  1996,  the  applicant  enlisted  in  the  Coast  Guard  for  four  years.  In 
1997,  while  lifting  a  heavy  object,  the  applicant  incurred  an  injury  to  his  back  that 
caused  him  to  have  occasional  pain,  for  which  he  received  periodic  treatments  with 
medication  and  physical  therapy.    An  MRI  taken  on  April  14,  1999,  showed  that  the 
applicant had a herniated disc at the L5-S1 level of the vertebrae.  It also showed early 
degenerative changes at the L4-5 level of the vertebrae.   

 
The  Physical  Disability  Evaluation  System  (PDES)  file  shows  that  in  1999  the 
applicant  was  treated  for  myriad  complaints.  During  that  year,  he  was  diagnosed  as 
suffering  from  anxiety  and  mild  depression.    He  was  prescribed  Prozac  and  later 
Wellbutrin.   

 
On  February  5,  2000,  the  applicant  was  referred  to  a  licensed  professional 
counselor (LPC) for evaluation as to whether the applicant was suffering from PTSD. 
The LPC diagnosed the applicant as suffering from PTSD with delayed on-set.  The LPC 
reported  that  the  applicant  stated  that  he  was  severely  beaten  on  four  separate 
occasions  during  the  first  year  and  a  half  that  he  was  in  the  Coast  Guard.    The  LPC 
stated that the applicant did not report the beatings because he was threatened that if he 
did  so,  he  would  be  subjected  to  further  beatings.    The  LPC  also  reported  that  the 
applicant stated that at one point he was locked in a cage and then beaten and thrown 
into  a  bin  of  lime.    The  LCP  reported  that  after  the  beatings  the  applicant  lived  in 
terrible  fear  wondering  when  the  next  ambush  might  occur.    "[The  applicant]  felt 
                                                                                                                                                             
members on the temporary disability retired list.  See Chapter 4.A.1. of the Physical Disability Evaluation 
System Manual (COMDTINST M1850.2C). 
 

continued helplessness and fear in regard to protecting himself because of the threats he 
received during the beatings and because on one occasion a senior officer seemed to be 
cognizant  of  the  attack  and  did  nothing."    The  LPC  stated  that  the  applicant  had  a 
serious to severe case of PTSD requiring urgent attention.    

 
After  the  evaluation  by  the  LPC,  Dr.  R,  a  Coast  Guard  physician,  requested  a 
psychiatric evaluation of the applicant to confirm the PTSD diagnosis.  In requesting the 
psychiatric evaluation, Dr. R noted the applicant's numerous physical complaints over a 
two-year period, the LPC's report, and the applicant's treatment with Wellbutrin.    

 
On  March  6,  2000,  a  military  psychiatrist  confirmed  the  applicant's  PTSD 
diagnosis.  The psychiatrist noted in his report that the applicant stated that as a result 
of the beatings, he was not able to sleep soundly through the night, talked in his sleep, 
and  had  vivid  nightmares. 
  The  psychiatrist  described  the  applicant's  mental 
examination as follows: 

 
The  patient  reports  [to  the  examination]  well-groomed  and  dressed  in 
duty uniform.  He is a well-developed/well-nourished white male who is 
very  cooperative  and  engaged  easily  in  the  interview.    His  thought 
processes were linear and goal directed.  His thought content showed no 
evidence  of  suicidal  or  homicidal 
ideation,  auditory  or  visual 
hallucinations.  There was no paranoid ideation.  His mood was described 
as  "not  that  good"  and  his  affect  was  anxious  and  somewhat  sad.    His 
concentration, memory and abstraction were all within normal limits.  His 
insight  into  the  cause  and  difficulties  that  he  was  having  is  considered 
good and his judgment is also considered good.   
 
 
The  psychiatrist  stated  that  the  applicant's  PTSD  diagnosis  while  serious  and 
requiring treatment would not meet the criteria for disposition through a medical board 
(MB) 3.  He returned the applicant to duty with psychiatric follow-up and medications.   
 
 
A MB convened in the applicant's case on March 17, 2000.  The MB consisting of 
one  physician,  Dr.  R,  who  diagnosed  the  applicant  with  the  following  conditions:  
PTSD,  multiple  somatic  complaints,  esophageal  reflux  disease,  and  a  herniated  L5-S1 
disc.    According  to  the  MB,  during  the  March  17,  2000  medical  examination,  Dr.  R 
found  the  applicant  to  be  "stable  on  current  management."    The  MB  stated  that  the 
applicant reported improved sleep dynamics and less agitation and that he had some 
para-lumbar tightness, for which Ultram was prescribed as needed.  The MB stated that 
                                                 
3      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 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's physical examination showed that his deep tendon reflexes were normal 
and symmetrical.  The straight leg test was normal at 45-60 degrees.  The toe and heel-
walk were normal, as was the sensory and motor examination.  Range of motion of the 
lumbo-sacral spine included:  "1) forward flexion -90-100 degrees; 2) backward flexion-
20-25  degrees;  and  lateral  flexion  -45  degrees  (right  equals  left)."    The  MB  concluded 
that the applicant was unable to fulfill the requirements for worldwide deployment and 
required  close  monitoring  by  mental  health.    The  MB  further  stated  that  the  "PTSD 
and/or  medications  (Wellbutrin  and  Prozac)  rendered  [the  applicant]  not  fit  for  full 
duty."   
 

On March 27, 2000, the applicant was notified of the MB and did not desire to 

submit a statement in rebuttal. 
 

On March 20, 2000, the applicant's commanding officer (CO) forwarded the MB 
to  CGPC  recommending  that  it  be  approved.  The  CO  stated  that  the  applicant  was 
unable to perform his duties of traveling with very little warning, lifting materials and 
equipment weighting as much as 50 pounds, and performing basic facility maintenance 
tasks.    He  also  stated  that  the  applicant's  work  ethic  had  suffered  following  his 
diagnosis.  In this regard, he stated that the applicant "has been observed participating 
in  physically  demanding  activities  such  as  wrestling  and  playing  basketball,  but  he 
complained shortly thereafter about soreness and his inability to perform certain work 
tasks. " 
 

On  February  27,  2002,  the  Central  Physical  Evaluation  Board  (CPEB)  reviewed 
the applicant’s case and recommended that he receive a 10% disability rating for PTSD 
under  the  Veterans  Administration  Schedule  for  Rating  Disabilities  (VASRD)4  code 
9411  (PTSD).    The  CPEB  described  the  applicant's  PTSD  symptoms  as  follows:  
"occupational and social impairment due to mild or transient symptoms which decrease 
work  efficiency  and  ability  to  perform  occupational  tasks  only  during  periods  of 
significant  stress."   The CPEB also gave the  applicant a 10% disability rating for mild 
intervertebral disc syndrome under VASRD code 5293, for a combined disability rating 
of 20%.  The CPEB recommended that the applicant be separated with severance pay.5   

 
On  April  24,  2000,  a  law  specialist  counseled  the  applicant  on  the  CPEB 
recommended findings and disposition.  On April 26, 2000, the applicant accepted the 
CPEB’s findings and recommendation and waived his right to a formal hearing. 

                                                 
4   The VASRD at 38 C.F.R., part 4, is the DVA's schedule for rating disabilities. The PDES boards use it to 
assign codes and percentages of disability for an evaluee found unfit for duty.  See Chapter 2.A.51 of the 
PDES Manual.   
 
5  Under  10  U.S.C.  § 1201,  only  disabilities  ratings  of  30%  or  higher  entitle  a  member  to  a  medical 
retirement.  Ratings of 10% or 20% entitle a member to severance pay.  10 U.S.C. § 1203. 
 

  
On May 10, 2000, the Chief Counsel (now the Judge Advocate General) reported 
that the proceedings were in acceptable form and technically correct.  On May 15, 2000, 
the Chief Administrative Division ordered that the applicant to be discharged by reason 
of physical disability with severance pay.  

 
On June 20, 2000, the applicant was honorably discharged with a combined 20% 

disability rating and severance pay. 

 

Decision of the Department of Veterans Affairs (DVA) 

 
 
The  applicant  submitted  a  January  10,  2003,  rating  decision  from  the  DVA 
showing that he had been granted a 30% disability rating for PTSD under VASRD code 
9411, and a twenty percent disability rating for lumbar degenerative disc disease under 
VASRD code 5293-5290.6 
 
 
showed the following:   
 

The  rating  decision  stated  that  the  DVA  examination  of  December  16,  2002, 

VA  exam  shows  you  reported  problems  with  fatigue,  interrupted  sleep, 
dreams, and frustration of stress.  You stated you have nightmares twice a 
week, flashbacks two to three times a week, and intrusive thoughts.  Other 
symptoms were listed as easily startled, and hypervigilance.  You stated 
that  you  are  uncomfortable  in  crowds  and  avoid  them.    You  also  stated 
that  you  have  a  volatile  temper  and  do  not  like  to  talk  about  your 
experience.    Exam  showed  your  mood  as  tense,  affect  was  appropriate 
with  no  homicidal  or  suicidal  ideation.    There  were  no  delusions, 
hallucinations, ideals of reference or suspiciousness.  Memory both remote 
and recent was good.  There was some social impairment, and difficulty in 
establishing and maintaining close relationships.   

The  DVA  rating  decision  stated  the  following  with  respect  to  the  applicant's 

 
 
lumbar degenerative disc disease: 
 

Treatment  reports  from  [a]  VAMC  show  you  were  being  followed  for 
chronic low back pain with pain medication being prescribed for control.  
Lumobsacral  spine  x-rays  taken  on  July  22,  2002  .  .  .  showed  lumbar 
vertebra to be intact with disc spaces preserved.  There was a transitional 
vertebra of S1.   

                                                 
6   The DVA also granted the applicant a 10% rating for gastroesophageal reflux disease under VASRD 
code  7399-7346,  a  10%  rating  for  radiculopathy  of  the  right  leg  under  VASRD  code  5293-8520;  and  0% 
rating for history of pleurisy under VASRD code 6899-6845.  The applicant's combined DVA rating was 
60% effective from March 26, 2002, the date he first filed his claim. 

 
VA exam showed you reported chronic back pain with bending, twisting, 
and pain going down the right leg with numbness and tingling down the 
right  leg.    You  stated  you  had  to  be  careful  getting  up  and  down,  and 
lifting.  Exam of the back revealed stiffness and lack of normal motion of 
the  lumbar  spine  on  walking.    There  were  very  firm  paraspinal  muscle 
masses.    Range  of  motion  of  the  lumbar  was  limited  with  flexion  to  30 
degrees  (95  is  normal),  extension  to  20  degrees  (35  is  normal),  right  and 
left lateral flexions to 30 degrees (40 is normal) and right and left rotation 
to  15  degrees  (35  is  normal).    Reflexes  were  3+  knee  jerks  and  1+  ankle 
jerks with some decreased sensation in the lateral aspect of the right leg.  
Diagnosis was given as lumbar degenerative disc disease.   
 

  * 

* 
 

* 

Since there is an overall 47% loss of motion of the lumbar spine, which is 
considered  moderate  symptoms,  an  evaluation  of  20  percent  is  assigned 
from  March  26,  2002.    An  evaluation  of  20%  is  assigned  for  moderate 
limitation of motion of the lumbar spine or for moderate recurring attacks 
of  intervertebral  disc  syndrome,  or  if  there  are  incapacitating  episodes 
having  a  total  duration  of  at  least  two  weeks  but  less  than  four  weeks 
during the past 12 months.  
 
 
 
 
 
 

VIEWS OF THE COAST GUARD 

 

 

On November 8, 2005, the Board received an advisory opinion from the Office of 
the Judge Advocate General (JAG).  He recommended that the applicant's request for 
relief be denied because it was untimely and for lack of proof of error or injustice.  
 
  
The JAG argued that the applicant has failed to show why it is in the interest of 
justice to excuse his delay in filing an application with the Board within three years of 
his  June  2000  discharge  from  the  Coast  Guard.    The  JAG  stated  that  the  applicant 
offered no explanation or justification for his delay in discovering the alleged error or in 
filing his application with the Board stating that he was not aware that he could petition 
the  Board.    In  this  regard,  the  JAG  stated  that  the  applicant  reasonably  should  have 
discovered the alleged error on his DD Form 214 when it was issued to him in 2000.   
 

The  JAG  argued  that  the  applicant  has  the  burden  of  proving  that  the  Coast 
Guard committed an error or injustice in his case, which he failed to meet.  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).  The  JAG  stated  that  the  military  record  actually 
shows that the applicant was afforded full due process rights and, with full advice of 
counsel, agreed with the Coast Guard's rating of his disability.    
  
 
The JAG argued that the only evidence submitted by the applicant to support his 
allegation that the  Coast  Guard  committed an  error  in  evaluating  his  condition  is  the 
2003  DVA  rating  granting  him  a  higher  disability  rating  for  PTSD  and  his  back 
condition.  The JAG noted that the DVA findings regarding the applicant’s disabilities 
have no bearing on the Coast Guard’s decision to separate the applicant upon rating his 
conditions as 20% disabling.  In this regard, 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  her  military  duties  and  then  rates  the  extent  the  unfitting  medical  condition 
prevents the member from performing her 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 60% disabled7 is not relevant to the Coast 
Guard's finding that he was 20% disabled at the time of his discharge.  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.   

 
 
The  JAG  attached  comments  from  the  Commander,  Coast  Guard  Personnel 
Command  (CGPC)  as  Enclosure  (1)  to  the  advisory  opinion.  CGPC  stated  that  the 
applicant was afforded all of his due process rights with respect to the processing of his 
case through the PDES.  He stated he found no error in the process or the decision of the 
Coast Guard to discharge the applicant with a 20% disability rating.  CGPC noted that 
the applicant based his request for relief on the 60% disability rating he received from 
the DVA.  CGPC noted the possibility that the applicant's condition may have changed 

                                                 
7   The DVA combined 60% disability rating included 30% for PTSD, 20% for Intervetebral Disc 
Syndrome, and two 10% ratings for conditions not rated by the CPEB.   

or  worsened  after  his  separation  from  the  Coast  Guard  and  further  noted  the 
differences between the military and DVA disability evaluation systems.   
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On November 9, 2005, the BCMR sent the applicant a copy of the views of the 
Coast  Guard  and  granted  him  thirty  days  to  reply.    The  BCMR  did  not  receive  a 
response from the applicant.   
 

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 a MB normally consisting of two medical officers8 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.   
 

Chapter  3.I.7.  provides  that  before  forwarding  an  IMB  (initial  medical  board) 
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. 
 

                                                 
8   In exceptional cases a MB can consist of one medical officer.  See Chapter 3.C.1. of the PDES Manual.   

 
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.   

 
 
2.  The application was not timely.  To be timely, an application for correction of 
a military record must be submitted within three years after the applicant discovered or 
should  have  discovered  the  alleged  error  or  injustice.    See  33  CFR  52.22.      This 

application  was  submitted  approximately  eighteen  months  beyond  the  statute  of 
limitations.   
 

3.   However, the Board may still consider the application on the merits, if it finds 
it is in the interest of justice to do so. In Allen v. Card, 799 F.  Supp. 158, 164 (D.D.C. 
1992), the court stated that in assessing whether the interest of justice supports a waiver 
of the statute of limitations, the Board "should analyze both the reasons for the delay 
and  the  potential  merits  of  the  claim  based  on  a  cursory  review."    The  court  further 
stated that "the longer the delay has been and the weaker the reasons are for the delay, 
the more compelling the merits would need to be to justify a full review."  Id. at 164, 
165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 

 
 
4.    The  applicant  claimed  that  he  did  not  discover  the  alleged  error  until 
November 30, 2004.  However, the Board finds that the alleged error should have been 
discovered at the time of the applicant's discharge because he was well aware at that 
time that he was receiving a combined 20% disability rating from the Coast Guard.  In 
addition, the Board notes that the applicant waited almost two years after the January 
2003 DVA rating decision to file a BCMR claim.  Although the applicant alleged that he 
was  not  aware  of  the  BCMR  until  about  November  30,  2004  and  therefore  the  Board 
should excuse his untimely filing, the Board finds that information about the BCMR is 
available  to  the  public  and  accessible  through  libraries,  the  Internet,  and  the  Coast 
Guard  Personnel  Manual.    Even  if  the  applicant  was  not  aware  of  the  BCMR,  he  has 
offered no evidence that he sought any help from any source on how to challenge his 
disability rating from the date of his discharge until approximately November 30, 2004.  
The applicant has failed to provide a sufficient explanation for not filing his application 
within three years after his discharge from the Coast Guard.   
 

5.  With respect to the merits of the case, the Board finds that the applicant is not 
likely to prevail on them.  The applicant has submitted insufficient evidence to prove 
that  the  Coast  Guard  committed  an  error  by  discharging  him  with  a  10%  disability 
rating for PTSD and a 10% disability rating for his back disability.    
 

6.    The  PDES  Manual  requires  the  Coast  Guard  to  use  the  VASRD  in  rating 
disabilities.  The CPEB rated the applicant's PTSD under VASRD code 9411 and found 
that  his  symptoms  closely  matched  those  at  the  10%  level.      Symptoms  for  a  10% 
disability  rating  under  VASRD  code  9411  are  as  follows:    "Occupational  and  social 
impairment  due  to  mild  or  transient  symptoms  which  decrease  work  efficiency  and 
ability  to  perform  occupational  tasks  only  during  periods  of  significant  stress,  or 
symptoms controlled by continuous medications."  The psychiatric findings of the MB 
support the CPEB's assignment of a 10% disability rating.  According to the psychiatrist 
who evaluated the applicant for the MB, the applicant reported not being able to sleep 
soundly through the night, talking in his sleep and having vivid nightmares.  However, 
the mental examination showed the applicant's concentration, memory and abstraction 

were  all  within  normal  limits.    It  further  showed  that  the  applicant's  insight  and 
judgment  were  good.    In  fact,  the  psychiatrist  stated  that  the  applicant  could  be 
returned to duty with psychiatric follow-ups and medication.  In addition, according to 
the CO, the applicant's PTSD interfered with the performance of his duties only to the 
extent of limiting his ability to travel on short notice.  (The other factors mentioned by 
the CO had to do with the applicant's back injury.)  In finding the applicant unfit for full 
duty, the MB noted the applicant's need psychiatric follow up and medication.  In light 
of the psychiatric evaluation and the MB, the applicant's PTSD symptoms at the time of 
his  discharge  were  not  severe  enough  to  mandate  a  rating  higher  than  10%.      For  a 
higher  PTSD  disability  rating  under  VASRD  code  9411  at  the  time  of  discharge,  the 
applicant  needed  to  show  that  he  had  increased  occupational  and  social  impairment 
due  to  symptoms  such  as  depressed  mood,  anxiety,  suspiciousness,  panic  attacks, 
chronic  sleep  impairment,  or  mild  memory  loss.    Such  symptoms  either  were  not 
present or were minimal at the time of the applicant's discharge.    

 
7. As the advisory opinion stated, the applicant's condition apparently worsened 
after  his  discharge.  The  applicant  reported  during  the  2003  DVA  examination, 
approximately two years after his discharge that he suffered from "fatigue, interrupted 
sleep, dreams, and frustration of stress."  He further reported nightmares twice a week, 
flashbacks, two to three times a week, and intrusive thoughts.  The DVA rating decision 
stated that the applicant reported that he was anxious, hypervigilant, uncomfortable in 
crowds,  and  that  he  had  a  volatile  temper.    In  contrast,  the  Coast  Guard  psychiatrist 
reported  in  2000  that  the  applicant  stated  that  he  did  not  sleep  soundly  through  the 
night  and  that  he  talked  in  his  sleep  and  had  nightmares.    Subsequently,  the  MB  of 
March 17, 2000 reported that the applicant's sleep dynamics had improved and that he 
had less agitation.  The Coast Guard could only rate those symptoms that were present 
at the time of the applicant's medical board examination.   

 
8.    Nor  has  the  applicant  submitted  sufficient  evidence  to  show  that  the  Coast 
Guard erred in rating his intervertebral disc syndrome under VASRD code 5293 as 10% 
disabling.  Under VASRD code 5293, a mild case of intervertebral disc syndrome carries 
a disability rating of 10%.  The applicant relied on his DVA examination that occurred 
two  years  after  his  discharge  from  the  Coast  Guard  to  prove  he  should  have  had  a 
higher rating.  The Coast Guard medical record established that the applicant suffered 
from a herniated disc while on active duty, but at the time of the MB, the doctor found 
his  back  condition  to  be  stable  and  his  range  of  motion  to  be  only  slightly  impaired, 
although  the  applicant  reported  occasional  right  para-lumbar  discomfort.      However, 
during the DVA examination two years later, the applicant stated that he had chronic 
pain  with  bending,  twisting,  pain  radiating  down  the  right  leg  with  numbness  and 
tingling, and that he had to be careful getting up and down and lifting.  In addition, the 
DVA  medical  examination  showed  that  the  applicant's  range  of  motion  was  limited 
significantly. The fact that the applicant's back condition worsened two years after his 
discharge  does  not  mean  that  his  Coast  Guard  medical  examinations,  MB,  or  CPEB 

determinations were incorrect at the time of his discharge.  The applicant's CO stated 
that  the  applicant's  condition  interfered  with  his  ability  to  lift  equipment  sometimes 
weighing as much as 50 pounds.  However the CO also noted that the applicant was 
observed wrestling and playing basketball.  If, as it appears, the applicant's conditions 
worsened after his discharge from the Coast Guard, the DVA is the appropriate agency 
from  which  the  applicant  may  seek  an  increase  in  his  disability  rating  and 
compensation.       
 

9.  Chapter 2.C.2.a. of the PDES Manual 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  of  the  impact  of  the  applicant's  disabilities  on  the 
performance of his duties is not inconsistent with the ratings assigned by the CPEB. 

 
10.    Although  the  applicant  submitted  evidence  showing  that  the  DVA  has 
granted him higher disability ratings for his PTSD and back injury, 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 a combined 20% physical disability rating.  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.  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.  Accordingly, due to the unpersuasive reason for not filing his application 
sooner and the lack of merit in his claim, the Board finds that it is not in the interest of 

justice to waive the statute of limitations in this case, and it should be denied because it 
is untimely. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

 

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

his military record is denied. 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

        

 
 Frank H. Esposito 

 

 

 
 Jordan S. Fried 

 

 

 
 William R. Kraus