DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-112 
 
Xxxxxxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxxxx 

 

 
 

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 
case on May 9, 2006, upon receipt of the completed application. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated January 31, 2007, 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  sepa-
 
rated from the Coast Guard on August 4, 2006, with a 40% disability rating and disabil-
ity retirement pay, instead of being discharged with a 20% disability rating and sever-
ance pay.  He alleged that the Coast Guard’s Formal Physical Evaluation Board (FPEB) 
erroneously rated his back condition as only 20% disabling.  He alleged that his medical 
records  show  that  the  limited  range  of  motion  (ROM)  in  his  back  warranted  a  40% 
rating under the Veterans Affairs Schedule for Rating Disabilities (VASRD).   
 
 
The applicant alleged that in finding his back condition to be only 20% disabling, 
the FPEB relied upon a simple visual assessment by a physician’s assistant, LT G, who 
had  never  before  conducted  an  examination  for  an  Initial  Medical  Board  (IMB).    The 
applicant alleged that other, more scientific examinations by more experienced medical 
professionals showed clearly that the range of forward flexion in his back was less than 
30 degrees and thus met the VASRD criterion for a 40% rating.  He argued that even if 
the FPEB had some doubt as to whether his range of motion merited a 40% rating, Coast 

Guard regulations required that such doubt be resolved in his favor.  The applicant also 
complained that the Coast Guard repeatedly changed its explanation of the 20% rating. 
 
The applicant alleged that during his hearing before the FPEB, the board mem-
 
bers primarily asked questions concerning his character, integrity, loyalty, and why he 
had  recently  signed  a  one-year  extension  contract  instead  of  reenlisting  for  a  longer 
period.   
 

SUMMARY OF THE RECORD 

 

On November 10, 1997, the applicant enlisted in the Coast Guard.  He reported 
no  history  of  back  pain  during  his  pre-enlistment  physical  examination.    In  2000,  the 
applicant hurt his back while moving a heavy piece of furniture.  Thereafter, he occa-
sionally sought treatment for back pain.  

 
On  October  21,  2002,  the  applicant  underwent  a  physical  examination  for  the 
purpose of separation.  He did not report any back injury or recurrent back pain on his 
Report of Medical History.  He was found fit for separation but decided to reenlist. 

 
On  December  7,  2004,  the  applicant  sought treatment  for  lower  back  pain.    He 
reported that he had suffered from lower back pain four or five time a year since his 
injury  in  2000.    On  January  4,  2005,  the  applicant  underwent  an  MRI,  which  showed 
disc  herniation  at  L3-L4,  a  small  disc  protrusion  at  the  L4-L5,  and  sacralization  (con-
genital fusion) of the L5 and S1 vertebrae. 

 
On  March  11,  2005,  the  applicant  sought  treatment  for  lower  back  pain.    He 
stated that his back had been hurting since December 2004 although previously his back 
pain had never lasted more than two or three weeks.  The doctor referred him for neu-
rology and physical therapy evaluations. 

 
On March 21, 2005, the applicant underwent a physical examination for the pur-
pose  of  separation  as  he  had  declined  to  reenlist.    He  reported  that  he  suffered  from 
“constant back pain due to herniated disks” but had not seen a doctor yet.  The physi-
cian noted that he would await results from a neurological examination.   

 
On  March  25,  2005,  a  neurosurgeon  examined  the  applicant  and  noted  that  he 
had  no  complaints  of  numbness,  good  strength,  and  a  “full  range  of  motion  of  the 
lumbosacral spine.”  The neurosurgeon prescribed physical therapy and Celebrex. 

 
On March 28, 2005, the applicant reported that his back pain was much better.  

However, on April 22, 2005, he again sought treatment for lower back pain.   

 

On April 30, 2005, the applicant’s physical therapist measured his lumbar flexion 
at 27 degrees, his extension at 5 degrees, and his “side-bending” at 8 degrees to the right 
and 10 degrees to the left. 

 
On May 2, 2005, the physician reported that the applicant did not have any dis-
qualifying defects.  Therefore, he was found fit for separation.  The applicant objected to 
the finding and extended his enlistment for one year.  In June 2005, the applicant was 
transferred to a new unit in Louisiana.   

 
On July 21, 2005, the applicant sought treatment for lower back pain, which he 
stated was inhibiting his sleep.  The doctor noted that the applicant had “no low back 
tenderness” and “no low back spasms” and that he could “touch his fingers to about 8 
inches from the floor.”  The applicant was found fit for duty but referred for physical 
therapy and prescribed Celebrex. 

 
Also  on  July  21,  2005,  the  results  of  a  nerve  conduction  study  were  normal, 
except that a tibial nerve study indicated that there might be a right S1 radiculopathy or 
a right tibial or sciatic nerve lesion.  On July 22, 2005, a radiologist, Dr. H, reported that 
the applicant had “a transitional last lumbar vertebra with a large pseudoarthrosis on 
the left.  A smaller pseudoarthrosis is seen on the right.  The transitional space is rudi-
mentary.  The spine is otherwise unremarkable.” 

 
On July 29, 2005, the applicant’s physical therapist measured his forward lumbar 
flexion as 60 degrees, his extension as 13 degrees, and his side bending as 19 degrees to 
the left and 17 degrees to the right. 

 
On August 9, 2005, the applicant again sought help for back pain.  He stated that 
he had only been able to attend three of his physical therapy sessions because of work.  
He complained that he did not think the Celebrex was working and was having more 
pain when trying to sleep.  The applicant was found fit for light duty and prescribed 
Combunox. 

 
On October 5, 2005, the applicant sought help for back pain.  He stated that he 
had been working 12-hour shifts due to Hurricane Katrina, which was hard on his back.  
The physician ordered another MRI and prescribed steroid injections. 

 
On October 12, 2005, the applicant sought help for severe back pain.  He stated 
that  he  had  awoken  in  pain  the  day  before  and  had  received  injections  at  a  hospital 
emergency room.  The physician prescribed Vicodin. 

 
On October 13, 2005, the applicant underwent another MRI, which showed that 

he had a small posterior central disk herniation at L3-4 and a disc bulge at L4-L5. 

 

On October 18, 2005, the applicant’s command referred him for a physical exam-
ination  to  determine  whether  an  Initial  Medical  Board  (IMB)  should  assess  his 
condition.    The  physician  reported  that  the  applicant  stated  “that  he  was  moving 
furniture 5 yrs ago and slipped backwards, pain was immediate.  [He] states that pain 
was constant after that and he was treated by several different methods.”  The applicant 
was referred to a pain specialist. 

 
On  November  8,  2005,  Dr.  D,  a  neurosurgeon,  examined  the  applicant  and 

reported that after the applicant’s back injury in 2000 

 
his  initial  pain  resolved  but  since  then  he  has  had  gradually  worsening  frequency  and 
severity of pain, and he has reached the point where now his pain is set off with almost 
any overexertion of the lower back.  In addition, he describes wakening from sleep every 
morning with severe lower back pain which takes approximately one hour to subside to 
the point where he can function normally. … The patient describes his pain as occurring 
directly in the mid line and at approximately waist level.  It tends not to radiate laterally.  
He also describes frequent crepitus of the lower back but states that when this occurs it 
tends to reduce his pain rather than worsen it. 
 
Dr. D further stated that the applicant had “no active paraspinous spasm or ten-
derness”  but  might  have  discogenic  pain.    He  stated  that  an  MRI  showed  “some 
desiccation of the L3-L4 and L4-L5 discs” and “some minimal disc protrusions at each 
of these levels in the mid line which appear to be non-compressive.”  Dr. D stated that 
because the applicant was not interested in surgery, he would not order further testing. 
 

On December 1, 2005, a physical therapist used an inclinometer to take the fol-

lowing series of measurements of the range of motion in the applicant’s lower back. 

 

LUMBAR ROM MEASUREMENTS BY INCLINOMETER ON 12/1/05 
Flexion 

Extension 

 
T12* 
[–] Sacrum 
[=] Total 
Lumbar ROM 
*T12 is the lowest thoracic vertebra—just above L1—while the sacrum is just below the lowest lumbar vertebra. 
 

Rt. Lateral Extension  Lt. Lateral Extension 
20 
22 
5 
4 
16 
17 

19 
4 
15 

18 
4 
14 

24 
5 
19 

23 
5 
18 

40 
12 
28 

45 
10 
35 

40 
14 
26 

15 
10 
5 

13 
10 
3 

15 
9 
6 

On December 15, 2005, Dr. D reported that the applicant stated that he did not 
feel  that  his  back  pain  was  severe  enough  to  warrant  undergoing  lumbar  fusion  sur-
gery.    Dr.  D  wrote  that  the  applicant’s  symptoms  “do  impact  on  many  of  his  daily 
activities but he states that they really are not particularly severe.  He has an achy pain 
in his back during the day and some difficulty with sleeping at night, but not what he 
would call unremitting, severe lower back pain.  He stated definitively today that he is 
not interested in surgery to eradicate the level of pain that he is experiencing.” Dr. D 
noted  that  the  likely  outcome  of  surgery  would  be  unknown  until  a  discogram  and 
bone scan were conducted, but he would not refer the applicant for such studies “due to 

the  controllable  nature  of  the  patient’s  symptoms.  …  [U]ntil  the  patient  feels  that  his 
symptoms are severe enough where he is desirous of an operation, I would not recom-
mend [the tests].  With regard to outcomes, his likelihood of success is entirely contin-
gent upon the diagnostic studies.” 

 
On December 21, 2005, an Initial Medical Board (IMB) evaluated the applicant’s 
chronic lower back pain.  The IMB noted that the applicant had injured his back while 
moving  furniture  in  October  2000  and  that  when  he  went  to  the  emergency  room  he 
reported that he had previously suffered from a decreased range of motion and pres-
sure to his legs.  The IMB reported that an  

 
MRI of the lumbar spine dated 13 OCT 2005 revealed disk degeneration at L3-L4 accom-
panied by small posterior central disk herniation of L3-L4.  At L4-L5, disk bulging was 
demonstrated.    No  significant  canal  of  foraminal  encroachment  noted.    MRI  dated  04 
JAN 2005 denotes the same findings, in addition to finding no nerve root involvement at 
either level. …  Treatment consisted of multiple trials of steroidal and non-steroidal anti-
inflammatory  drugs,  none  of  which  offered  any  long  term  pain  relief.    Most  recently, 
evaluee was prescribed Vicodin ES, which offers some short term relief.  Physical therapy 
offered no symptomatic relief, as well. 
 
The physical exam showed a young adult male in no acute distress.  Upon inspection of 
the back, no lesions or scars were present.  Palpation of the spine revealed a normal spine 
alignment.  Palpation of the lumbar spine elicited tenderness approximately between L4-
L5.  Assessment of the ROM [of] the lumbar spine revealed decreased flexion with pain 
around 45 degrees.  Extension of the lumbar spine was difficult to perform without the 
evaluee  expressing  extreme  discomfort.  …  ROM  of  the  back  by  goniometer  measure-
ments are as follows: lumbar extension: 5, 3, and 6 degrees.  Right lateral flexion: 17, 19, 
and 18 degrees.  Left lateral flexion:  14, 15, and 16 degrees.  Right SLR: 55 degrees.  Left 
SLR:  59 and 60 degrees. 
 
It is the opinion of the board that the diagnosis of chronic low back pain is correct, and 
that  the  patient  is  unable  to  perform  work  activities  associated  with  lifting,  prolonged 
standing, and frequent bending. 
 
The prognosis of his patient is poor from the standpoint of low back symptom relief.  He 
has been treated with multiple medications and physical therapy, but still complains of 
constant low back pain.  This functional impairment of the low back precludes the eval-
uee from performing satisfactory performance of duty. 
 
The applicant agreed with the IMB’s report.  On January 11, 2006, the applicant’s 
commanding  officer  forwarded  the  report  of  the  IMB  to  the  Coast  Guard  Personnel 
Command (CGPC) with a recommendation that he be found not fit for duty and sepa-
rated  from  active  duty.    The  commanding  officer  noted  that  the applicant  was  “pres-
ently limited in the performance of normal duties of his grade” and could not function 
fully in an afloat or overseas assignment. 

 

On January 19, 2006, the CPEB reviewed the applicant’s records and recommend-
ed that he be discharged with a 20% disability rating and severance pay for interverte-
bral disc syndrome under VASRD code 5243. 

 
On January 27, 2006, a physical therapist used a goniometer to take the following 
series of measurements of the applicant’s thoracolumbar spine before and after exercise.   

THORACOLUMBAR ROM MEASUREMENTS BY GONIOMETER ON 1/27/06 

 

 
Flexion 
Extension 
Right Lateral Extension 
Left Lateral Extension 
Right Rotation 
Left Rotation 
Total ROM [handwritten] 
 

Before Exercise 

After Exercise 

20 
10 
10 
15 
33 
40 
128 

19 
11 
11 
13 
30 
42 
126 

20 
8 
13 
15 
32 
40 
128 

25 
10 
12 
17 
34 
42 
135 

25 
11 
15 
20 
37 
45 
153 

28 
12 
14 
17 
35 
46 
152 

On February 13, 2006, LT G responded to a query from the applicant’s attorney 
by stating that when she examined the applicant, she asked him to bend down to touch 
his toes, but he was only able to go about half way down and therefore made a “clinical 
visual assessment” that his total range of motion was about 45 degrees rather than 90 
degrees. 

 
On  February  13,  2006,  the  applicant  rejected  the  findings  and  recommendation 
by the CPEB and demanded a hearing before the FPEB.  He argued that an inclinometer 
is “not recognized by VA standards and does not measure forward flexion of the thora-
columbar  spine,  which  is  the  requisite  area  of  measurement  for  rating,  nor  does  the 
measurement correlate with the VA scale.”  He noted that the VASRD states that meas-
urement  by  goniometer  is  “indispensable”  and  submitted  the  report  of  the  measure-
ments  dated  January  27,  2006.    He  further  argued  that  since  the  IMB’s  report  errone-
ously attributed the December 1, 2005, measurements to a goniometer, rather than an 
inclinometer,  the  CPEB  must  have  erroneously  assumed  that  the  measurements  were 
taken  by  goniometer.    In  addition,  he  argued  that  the  CPEB  erroneously  based  its 
determination on his forward flexion at T12 and the sacrum. 

 
On  February  15,  2006,  the  president  of  the  CPEB  responded  to  the  applicant’s 
request that his case be reconsidered.  He stated that the CPEB felt that the applicant 
had  submitted  insufficient  evidence  to  change  the  findings  already  rendered  by  the 
CPEB.  He further stated that  

 
although the VASRD does indeed note that the use of a goniometer is indispensable, it 
does  not  specifically  preclude  the  use  of  an  inclinometer  nor  does  it  indicate  that  such 
measurements are invalid.  The use of an inclinometer is, in fact, commonly used for tho-

racolumbar range of motion measurements.  The measurements made by physical ther-
apy … on 1 Dec 2005 were absolutely valid.  The report indicated flexion at T12 was 40-
45  degrees.    These  were  an  appropriate  and  accurate  measure  of  functional  thora-
columbar range of motion, and correlate well with the VASRD ratings under the General 
rating  formula  for  diseases  and  injuries  of  the  spine.    These  measurements  were  also 
more consistent with physical exam findings of full range of motion by neurosurgery on 
25 Mar 2005, and physical therapy observations that the member was able to reach with 
his fingers to about 8 inches from the floor on 18 October 2005. 
 
On February 17, 2006, the medical member of the CPEB wrote the following to 

the applicant’s counsel: 

 
The board noted the MRI finding (4 JAN 2005) that the member was found to have sac-
ralization of L5.  This is a congenital anomaly in which L5 is fused to S1.  As such, there is 
no true motion about L5-S1.  Hence, the member’s restricted lumbar range of motion as 
indicated by [on December 1, 2005, and January 27, 2006] cannot be attributed solely to 
the member’s impairment.  (See note (3) 4.71a-19 of the VASRD).  Therefore, application 
of the VASRD rating of 40% based on ROM is not appropriate.  However, the board rec-
ognizes that the member’s impairment, specifically, the HNP at L3-4, is likely responsible 
for a portion of his restricted lumbar ROM.  In order to resolve this in favor of the mem-
ber, the board awarded the next lower relevant rating, which was 20%.  Again, this rating 
is more consistent with the member’s noted functional range of motion. 
 
On March 24, 2006, in response to written questions from the applicant’s attor-
ney, Dr. S, a neuroradiologist, stated that on January 4, 2005, an MRI had shown that 
the applicant has “lower lumbar degenerative disc disease with L3-4 and L4-5 disc pro-
trusions which are largely central.  These may cause localized low back pain and doubt-
fully radicular or shooting type pain.  No spinal canal stenosis is evident.”  The doctor 
further stated that he did not know if the applicant had sacralization of L5 but that “sac-
ralization  of  L5  has  no  clinical  import”  as  he  had  “never  heard  of  sacralization  of  L5 
preventing a full range of motion.”  The doctor further stated that “there is no indica-
tion for lumbar fusion surgery.” 

 
On March 24, 2006, in response to written questions from the applicant’s attor-
ney, LT G stated that the applicant himself had initiated is evaluation by an IMB.  She 
stated that her belief that his range of motion was about 45 degrees was based on her 
“clinical, visual assessment” when she asked him to try to touch  his toes.   She stated 
that the applicant “was only able to bend approximately half of my imaginary 90 degree 
angle [perpendicular to his legs] before pain was elicited.  I did not use any measuring 
tools  to  ensure  that  the  flexion  of  his  lumbar  spine  was  actually  45  degrees.”    LT  G 
noted  that  the  applicant  could  expect  to  have  “good  days  and  bad  days”  depending 
upon his fitness and exercise.  LT G stated that although she had inadvertently left her 
December 1, 2005, measurement of his forward flexion out of her report, the measure-
ment was included in another medical record reviewed by the CPEB.  LT G stated that 
the applicant had told a neurosurgeon that he would refuse surgery even if a discogram 

and bone scan indicated it that surgery was appropriate and that, because of his refusal, 
the advanced testing was not done.  LT G further stated that the applicant 

 
Has notable defects found on objective data gathered over the years since his injury.  [He] 
had  the  opportunity  to  be  released  Fit  for  Discharge  in  March  2005,  in  which  case  he 
could have been assessed by the Veterans Administration.  Instead, he took a calculated 
risk, on false information given to him by someone else undergoing a Medical Board, and 
reenlisted  for  an  additional  year.    At  the  time  of  signing  reenlistment  documents,  [he] 
had to be aware of the fact that he had limitations that would deem him unfit down the 
road.    [He],  in  my  opinion,  is  weighing  his  case  on  one  clinical  finding  and  a  clerical 
error.    When  in  reality,  the  percentage  of  disability  awarded  was  based  upon  weighty 
evidence, i.e., MRI findings, neurosurgical consults, physical therapist findings, and his 
own comments in respect to surgery. 
 
On March 27, 2006, in response to written questions from the applicant’s attor-
ney, Dr. H, a radiologist, stated that it was unlikely that pseudoarthrosis, sacralization, 
or lumbarization of the applicant’s spine would affect his forward flexion or the range 
of motion in his thoracicolumabar spine, which is 90 degrees. 

 
On  March  28,  2006,  the  FPEB  convened  to  hear  the  applicant’s  case.    At  the 
hearing,  LT  G,  the  physician’s  assistant,  stated  that  when  she  asked  the  applicant  to 
bend over as if to touch his toes, he was able to bend over about half way in comparison 
to a horizontal line, which would be a 90 degree bend.  Therefore, she had reported her 
clinical observation that his flexion was about 45 degrees.  Ms. P, the applicant’s physi-
cal  therapist,  stated  that  on  December  1,  2005,  she  measured  the  applicant’s  lumbar 
ROM to be 29 degrees and that on January 27, 2006, she measured his thoracolumbar 
ROM to be 26 degrees.  However, when asked for her opinion as to whether the appli-
cant’s back condition had changed between the two measurements, she stated that his 
condition had remained the same.  In response to a question, Ms. P stated that she was 
aware of the VASRD standards when she conducted the tests on January 27, 2006.  She 
further  stated  that  a  person’s  forward  flexion  was  a  “pretty  good”  indicator  of  func-
tional limitations and that a person’s total ROM, including flexion, backward and side-
ways extension, and rotation, provided a “more global picture.”  The applicant’s super-
visor testified that the applicant’s ability to perform his duties had deteriorated in fall 
2005 as he could not sit for long periods and was often absent due to his back pain.   

 
The  FPEB  recommended  that  the  applicant  be  discharged  with  severance  pay 
and a 20% disability rating for intervertebral disc syndrome under VASRD code 5243.  
The FPEB provided the following amplifying statement regarding their determination: 

 
•  Witness  for  the  Evaluee,  a  licensed  physical  therapist,  stated  that  the  best  way  to 
determine  [the  applicant’s]  functionality  in  light  of  his  condition  is  the  use  of  total 
range  of  motion  measurements  of  the  thoracolumbar  spine.    Evaluee’s  27  Jan  2006 
examination, requested on his behalf following rejection of the findings of his Central 
Physical Evaluation Board (CPEB), indicated a total range of motion of 128 degrees.  

Applying the VA formula for rating spines (VASRD Sec. 4.71a-18) would result in a 
disability rating of 10 percent. 

 
•  Evaluee’s  CPEB,  however,  determined  that  [he]  should  be  rated  at  the  20  percent 
level.    We  believe  this  is  the  appropriate  determination.    Visual  observation  of  his 
forward flexion range of motion, as record in the Initial Medical Board report, indi-
cated  a  range  of  motion  of  45  degrees.    This  forward  flexion  range  of  motion  falls 
within the range (greater than 30 degrees, not greater than 60 degrees) prescribed for 
a 20 percent disability rating. 

 
•  When there is a reasonable doubt as to which of two percentage evaluations should 
be applied, Coast Guard policy requires that the Board assign the higher evaluation 
(Physical  Disability  Evaluation  System  Manual,  COMDTINST  M1850.2C,  art. 
9.A.3.b.). 

 
On April 10, 2006, the applicant submitted a rebuttal to the FPEB’s report.  He 
complained that the FPEB had used the 26-degree measurement by his physical thera-
pist  in  its  determination  that  his  total  range  of  motion  was  128  degrees  but  then  dis-
counted the same measurement as his total forward flexion.  He stated that there was 
no justification for discounting the 26-degree measurement as the true measurement of 
the forward flexion of his thoracolumbar spine.  He pointed out that on March 27, 2006, 
his neurosurgeon had noted that a current measurement by a physical therapist would 
be more accurate than the neurosurgeon’s own measurement made one year earlier, on 
March 25, 2005.  The applicant claimed that it was also wrong for the FPEB to base its 
decision a purely visual, inexact observation by a physician’s assistant made a month 
before  the  26-degree  measurement  was  taken  by  goniometer.    In  addition,  he  argued 
that under the VASRD, his limited flexion of the thoracolumbar spine should have been 
the FPEB’s primary consideration, but the FPEB instead relied on the oral testimony of 
an expert about the functionality of his spine.  The applicant further claimed that the 
FPEB had not resolved any doubt about his range of motion in his favor, as required by 
Article 9.A.3. of the PDES Manual. 

 
The applicant stated in his rebuttal to the FPEB that he extended his enlistment in 
2005  for  just  one  year  simply  because  he  has  a  “special  needs”  child  and  he  was  not 
certain that the climate of his new billet in Louisiana would work for his child’s condi-
tion,  although  it  was  an  “optimal  area  that  was  suitable  and  recommended  for  my 
child’s condition.”  He stated that it was unjust for the physician’s assistant to say that 
his one-year extension was a “calculated risk” he took in hopes of getting a disability 
separation.  The applicant argued that if not permanently retired, he should at least be 
placed on the Temporary Disability Retired List (TDRL).  The applicant included with 
his rebuttal a faxed note from the neurosurgeon who examined him on March 25, 2005, 
stating the following: 

 
To whom it may concern:  It is impossible to determine what [the applicant’s] range of 
motion is at this time since his last office visit with me was on March 25, 2005.  His range 

of motion at that time was full but that  was over a year ago.  A better/recent range of 
motion can be provided by physical therapists. 
 
On April 20, 2006, the president of the FPEB responded to the applicant’s rebut-

tal, stating that the FPEB had reviewed the rebuttal and affirmed its decision: 

 
The Board found the assessment of the Medical Board Evaluator as determinative of your 
range of motion.  The Board notes that a licensed Physician Assistant, employing a medi-
cally valid method to gauge your range of motion, determined your forward flexion at 45 
degrees. 
 
The Board considered the findings of your Physical Therapist, but did not find the evi-
dence compelling.  The Board balanced the Physical Therapist’s measurement of forward 
flexion at 26 degrees against the same Physical Therapist’s testimony that the truest esti-
mate of your functionality is your total range of motion, which was 128 degrees. 
 
On April 24, 2006, a captain serving as the Physical Review Counsel (PRC) con-
curred with the FPEB, stating that he had reviewed it for completeness, accuracy, con-
sistency, and equitable application of policy and regulation.  On June 14, 2006, the Chief 
Counsel  found  the  proceedings  correct  and  the  findings  and  recommendation  sup-
ported by the evidence of record.  On June 29, 2006, Commander, CGPC, approved the 
FPEB’s findings and recommendation. 

 
On August 4, 2006, the applicant was discharged from the Coast Guard due to 
his physical disability with a 20% disability rating and lump sum disability severance 
pay. 
 

VIEWS OF THE COAST GUARD 

 

On  September  27,  2006,  the  Judge  Advocate  General  (JAG)  of  the Coast  Guard 
submitted  an  advisory  opinion  in  which  he  recommended  that  the  Board  deny  the 
requested relief.  In so doing, he adopted the facts and analysis of the case in a memo-
randum prepared by CGPC.  

 
CGPC  stated  that  there  is  “no  evidence  that  the  Coast  Guard’s  decision  in  this 
matter is in error or unjust.  The record indicates that the CPEB’s findings and recom-
mendations  were  reasonable  and  appropriate.”    CGPC  stated  that  the  applicant  has 
based his claim on a single clinical finding, whereas the FPEB “determined the percent-
age of disability awarded based upon the overall evidence of record (i.e., MRI findings, 
neurosurgical  consults,  physical  therapist  findings,  and  expert  testimony  during  the 
FPEB).” 
 
CGPC pointed out that the applicant received and exercised his full due process 
rights  under  the  PDES,  as  his  case  was  reviewed  by  a  CPEB,  FPEB,  PRC,  the  Chief 
Counsel, and Commander, CGPC.  CGPC noted that under Article 1.D.6.9. of the PDES 

Manual, when a member rebuts the findings and recommendation of the FPEB, the PRC 
reviews the entire record to ensure that the correct VASRD code was used, that there 
has been no pyramiding of impairments, that the correct disability percentage has been 
assigned under the VASRD descriptive diagnosis, and that the findings and disability 
rating are supported by a preponderance of the evidence in the record. 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On October 24, 2006, the BCMR received the applicant’s response to the views of 
the Coast Guard.  The applicant argued that CPEB erroneously relied on the measure-
ments of his T12 vertebra and that the angle of that vertebra should not be used to esti-
mate his ROM in his entire thoracolumbar spine.  He argued that, since the average of 
the three measurements of just his lumbar spine on December 1, 2005, was 29.6 degrees, 
that average should be considered his total thoracolumbar ROM, which would correlate 
to  a  40%  disability  rating  under  the  VASRD.    He  argued  that  the  FPEB  should  have 
relied entirely on the physical therapist’s measurements of his ROM in determining his 
disability rating rather than considering all of the other medical evidence as well.  He 
stated that the other medical evidence simply proves that he has a back injury and does 
not evince how disabled he is. 

 
The applicant argued that because his thoracolumbar ROM was measured at 26 
degrees,  which  would  justify  at  40%  rating,  and  his  total  ROM  was  measured  at  128 
degrees,  which  would  justify  only  a  10%  rating,  there  was  doubt  and  so  the  FPEB 
should have awarded him the higher rating.  Moreover, he argued, it was not appropri-
ate to consider the 128-degree measure since his physical therapist testified at his FPEB 
hearing that the “degree of flexion limitation gives you a pretty good picture of what 
his  functional  limitations  would  be.”    The  applicant  pointed  out  that  his  flexion  was 
measured  at  under  30  degrees  by  both  inclinometer  and  goniometer  on  December  1, 
2005, and January 27, 2006. 

 
The applicant argued that the FPEB relied too heavily on the opinion of LT G, a 
physician’s assistant, that his ROM was 45 degrees given that her opinion was based on 
her observation rather than on a measurement with a goniometer or inclinometer. 

 
The  applicant  further  argued  that  the  medical  evidence  regarding  the  effect  of 
the  congenital  sacralization  (fusion)  of  his  L5  and  S1  vertebrae  is  inconsistent.    He 
pointed out that two doctors have denied that the sacralization would affect his ROM, 
but the medical member of his CPEB assumed that it would in stating that his rating 
should be 20% rather than 40%. 
 

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.   
 
Veterans Affairs Schedule for Rating Disabilities (38 C.F.R. part 4) 
 

Under  the  VASRD  in  effect  during  the  applicant’s  PDES  processing  (2005  edi-
tion), the possible disability ratings for intervertebral disc syndrome that might apply 
under  VASRD  code  5243—with  or  without  symptoms  such  as  pain,  stiffness,  or 
aching—were as follows: 

 
•  100%  for  “unfavorable  ankylosis  [immobility  due  to  disease  or  surgical 

fusion] of the entire spine.” 

•  50% for “unfavorable ankylosis of the entire thoracolumbar spine.” 
•  40%  for  “forward  flexion  of  the  thoracolumbar  spine  30  degrees  or  less;  or, 

favorable ankylosis of the entire thoracolumbar spine.” 

•  20% for “forward flexion of the thoracolumbar spine greater than 30 degrees 
but not greater than 60 degrees; … or, the combined range of motion of the 
thoracolumbar  spine  not  greater  than  120  degrees;  …  or,  muscle  spasm  or 
guarding  severe  enough  to  result  in  an  abnormal  gait  or  abnormal  spinal 
contour … .” 

•  10% for “forward flexion of the thoracolumbar spine greater than 60 degrees 
but not greater than 85 degrees; … or, combined range of motion of the thora-
columbar spine greater than 120 degrees but not greater than 235 degrees; or 
muscle  spasm,  guarding,  or  localized  tenderness  not  resulting  in  abnormal 
gait or abnormal spinal contour … .” 

 
VASRD Note (2) for this section states that “[f]or VA compensation purposes, … 
[n]ormal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 
zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right 
lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum 
of  the  range  of  forward  flexion,  extension,  left  and  right  lateral  flexion,  and  left  and 
right rotation.” 
 

VASRD  Note  (5)  for  this  section  states  that  “[f]or  VA  compensation  purposes, 
unfavorable ankylosis is a condition in which the … entire thoracolumbar spine, or the 
entire spine is fixed in flexion or extension … .  Fixation of a spinal segment in a neutral 
position (zero degrees) always represents favorable ankylosis.” 

 
Section  4.46  of  the  VASRD  states  in  part  that  the  “use  of  a  goniometer  in  the 
measurement of limitation of motion is indispensable in examinations conducted with 
the Department of Veterans Affairs.” 

 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
The PDES Manual governs the separation of members due to physical disability.  
 
Chapter 3 provides that an IMB of two medical officers shall conduct a thorough medi-
cal  examination,  review  all  available  records,  and  issue  a  report  with  a  narrative 
description  of  the  member’s  impairments,  an  opinion  as  to  the  member’s  fitness  for 
duty and potential for further military service, and if the member is found unfit, a refer-
ral  to  a  CPEB.    The  member  is  advised  about  the  PDES  and  permitted  to  submit  a 
response  to  the  IMB  report.    Chapter  3.I.7.  provides  that  before  forwarding  an  IMB 
report to the CPEB, the member’s commanding officer (CO) shall endorse it “with a full 
recommendation based on knowledge and observation of the member’s motivation and 
ability to perform.”   
 
 
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 before making findings about 
the member’s condition, fitness for duty, and any recommended disability rating.   
 

Chapter  2.C.10.a.(2)  provides  that  the  CPEB  or  FPEB  will  consider  a  medical 
condition  to  be  “permanent”  when  “[a]ccepted  medical  principles  indicate  the  defect 
has stabilized to the degree necessary to assess the permanent degree of severity or per-
centage rating” or if the “compensable percentage rating can reasonably be expected to 
remain unchanged for the statutory five year period that the evaluee can be compen-
sated while on the TDRL.”  Under Chapter 8, if the CPEB (or the FPEB) determines that 
a member is unfit for duty and the condition may not be permanent but is at least tem-
porarily greater than 30 percent, the member may be placed on the temporary disability 
retired list (TDRL) for a maximum of five years.   

 
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. 

 

 
Chapters 4.A.13.a. and b. provide that the Commandant shall appoint legal coun-
sel to inform each member of the recommendation of the CPEB and to assist each mem-
ber in responding to the recommendation by advising him of his rights and the PDES.  
Chapter  4.A.14.c.  provides  that  the  member  has  the  right  to  reject  the  CPEB’s  recom-
mendation  and  demand  a  formal  hearing  by  the  FPEB  in  accordance  with  10  U.S.C. 
§ 1214.  Chapter 5.A.4. provides that an FPEB convened under 10 U.S.C. § 1214 normally 
consists  of  three  officers,  one  of  whom  is  a  medical  officer  and  none  of  whom  have 
served on the member’s CPEB.  
 
 
Chapter 5.C.11.a. provides that the FPEB shall issue findings and a recommend-
ed  disposition  of  each  case  in  accordance  with  the  provisions  of  Chapter  2.C.3.a.  (see 
above).  Under Chapter 1.D.9., the FPEB must base its decision on the preponderance of 
the  evidence.    Chapter  9.A.1.  states  that  not  all  of  the  policy  provisions  under  the 
VASRD are applicable to the Coast Guard as they were written for DVA rating boards, 
which  apply  different  presumptions  and  consider  different  factors.    Chapter  9.A.3. 
states the following: 
 

Where there is a reasonable doubt as to which of two percentage evaluations should be 
applied,  the  higher  evaluation  will  be  assigned  if  the  disability  picture  more  nearly 
approximates  the  criteria  for  that  rating.    Otherwise,  the  lower  rating  will  be  assigned.  
When, after careful consideration of all reasonably procurable and assembled data, there 
remains  reasonable  doubt  as  to  which  rating  should  be  applied,  such  doubt  shall  be 
resolved in favor of the member, and the higher rating assigned. 

 

The applicant has 15 working days in which to file a rebuttal.  Chapter 5.D.2.c. 
provides that the FPEB will inform the member or his counsel whether the rebuttal sup-
ports a change in the FPEB’s determinations.   
 
 
Chapter 6.B.1. provides that whenever a member rebuts the recommended dis-
position of the FPEB, a Physical Review Counsel (PRC) who must be a commissioned 
officer in pay grade O-5 or above will review the entire case to “check for completeness 
and  accuracy,  and  ensure  consistency  and  equitable  application  of  policy  and  regula-
tion.”  Chapter 6.B.2. provides that the PRC will not normally modify the findings and 
recommended disposition of the FPEB unless they are clearly erroneous.  Chapter 6.B.3. 
provides  that  the  PRC  must  concur  with  the  FPEB  unless  it  has  assigned  the  wrong 
VASRD codes, pyramided the impairments, applied an “[i]ncorrect percentage of dis-
ability to the VASRD descriptive diagnosis/code(s), or was arbitrary and capricious or 
abused its discretion in making its determinations.  If the PRC finds such an error, he 
shall return the case to the FPEB for reconsideration.”  Chapter 6.B.6. allows a member 
to submit new evidence or any pertinent information in writing to the PRC officer. 
 
Chapter  1.B.4.  provides  that  the  Chief  Counsel  will  review  the  actions  of  the 
 
CPEB, FPEB, and PRC to ensure legal sufficiency.  If no legal insufficiency is found, the 

Chief Counsel forwards the case to CGPC for final action.  CGPC may return a case to 
the appropriate board with an explanation if there are doubts about the case. 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

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

 
2. 

 Under  33  C.F.R.  § 52.24(b),  the  Board  “begins  its  consideration  of  each 
case  presuming  administrative  regularity  on  the  part  of  the  Coast  Guard  and  other 
Government officials.  The applicant has the burden of proving the existence of an error 
or  injustice  by  a  preponderance  of  the  evidence.”    Under  the  PDES,  the  CPEB,  FPEB, 
and PRC are also supposed to base their recommendations about a member’s disability 
rating on the preponderance of the evidence.  PDES Manual, Chap. 1.D.9.  The applicant 
alleged that the fact that on January 27, 2006, his physical therapist measured the aver-
age forward flexion of his thoracolumbar spine to be 26 degrees proves that the FPEB 
erred in recommending a 20% disability rating because one of the possible criteria for a 
40% rating under the VASRD is forward flexion of the thoracolumbar spine of less than 
30 degrees. 

 
3. 

 A 40% rating under the VASRD requires either ankylosis (immobility) of 
the  entire  thoracolumbar  spine  in  a  neutral  position  or  forward  flexion  of  the  thora-
columbar spine of less than 30 degrees.  Although on January 27, 2006, a physical thera-
pist measured the applicant’s forward flexion at 26 degrees, the Board is not persuaded 
the  FPEB  erred  in  determining  that  the  preponderance  of  the  evidence  in  the  record 
showed that the applicant’s “disability picture more nearly approximate[d] the criteria” 
for a 20% disability rating, pursuant to Article 9.A.3. of the PDES Manual.  As the record 
indicates that the applicant’s back condition varied over time, a single day’s measure-
ments are not necessarily probative of his usual condition. 

 
4. 

The FPEB noted in  its amplifying statement that the 26-degree measure-
ment of the applicant’s forward flexion on January 27, 2006, was not compelling in light 
of the other evidence in the record.  The applicant’s medical records contain other evi-
dence  showing  that  his  usual  ROM  was  significantly  greater  than  indicated  by  the 
January 27, 2006, measurements of his forward thoracolumbar flexion: 

 

range of motion in his back. 

(a) One year earlier, a neurosurgeon reported that the applicant had a full 

(b) On July 21, 2006, the applicant was able to bend down far enough that 

his fingertips were about 8 inches from the floor. 

(c) While  evaluating  him  for  his  IMB,  a  licensed  physician’s  assistant 
asked him to bend over to try to touch his toes and observed that he got about 
half-way down (45 degrees) to an imaginary horizontal line, or 90-degree bend. 

(d) On December 1, 2005, the physical therapist took three measurements 
of the forward flexion in the applicant’s lumbar spine, which were 26 degrees, 28 
degrees,  and  35  degrees.    With  the  applicant’s  average  forward  flexion  in  his 
lumbar spine alone measuring 29.67 degrees and with there being nothing wrong 
with his thoracic spine and its ability to flex forward, the forward flexion of his 
entire thoracolumbar spine of December 1, 2005, was likely significantly higher 
than 30 degrees. 

(e) The  applicant’s  total  ROM  on  January  27,  2006,  averaged  127.33 
degrees before exercise and 146.67 degrees after exercise, which measurements, 
considered alone, would justify only a 10% disability rating under the VASRD. 
 

Therefore, considering the preponderance of the evidence in the record, the Board finds 
that the FPEB did not err by concluding that the applicant’s back condition merited a 
20% rating rather than a 10% or 40% rating under the VASRD.  

 
5. 

The  applicant  argued  that  because  of  the  26-degree  measurement  of  his 
forward flexion, the FPEB should have had “reasonable doubt” about whether to assign 
him a 20% or 40% disability rating and so should have awarded him the 40% rating in 
accordance with Chapter 9.A.3. of the PDES Manual.  The fact that the January 27, 2006, 
measurement  of  his  forward  flexion  supported  a  40%  rating  does  not  prove  that  the 
members of the FPEB should have doubted the appropriateness of the 20% rating.  As 
medical  conditions  vary,  medical  measurements  vary,  and  the  FPEB  was  required  to 
recommend the percentage rating supported by a preponderance of all the evidence— 
not to recommend the highest percentage rating that could possibly be justified by any 
part of the medical record.  The record indicates that the FPEB members carefully con-
sidered all of the medical evidence, including the January 27, 2006, measurements, and 
resolved their doubt as to whether he should receive a 10% or 20% rating in his favor. 

 
6. 

The applicant complained that Coast Guard repeatedly changed its expla-
nation for his 20% rating.  By regulation, the CPEB and FPEB are composed of different 
members.  While the members of each medical board must agree among themselves on 
an  assigned  disability  rating,  they  are  not  required  to  reach  their  conclusions  for  the 
same reasons.  The record shows that some of the members of the applicant’s medical 
boards weighed the evidence differently and so arrived at the same conclusion—a 20% 
disability rating—for different reasons.  The president of the CPEB indicated on Febru-
ary 15, 2006, that the CPEB considered the December 1, 2005, 40- to 45-degree measure-
ment  of  the  applicant’s  T12  vertebra  to  be  significant.    The  CPEB’s  medical  member 
wrote separately on February 17, 2006, to say that he believed that some of the appli-

cant’s ROM limitation was due not to a service-incurred injury but to the congenital sac-
ralization (fusion) of his sacrum with his L5 vertebra.  Since the applicant rejected the 
CPEB decision and demanded an FPEB, the former board’s reasoning and conclusion, 
whether correct or not, are not significant because they were superseded by the reason-
ing and conclusion of the latter board.  

 
7. 

The FPEB’s amplifying statement showed that its members agreed on the 
20% rating primarily because of the applicant’s total ROM measurements on January 27, 
2006,  which  would  justify  only  a  10%  rating,  and  the  observation  of  the  physician’s 
assistant during an examination pursuant to his IMB that he was able to bend half-way, 
or  45  degrees,  down  to  an  imaginary  horizontal  line  representing  90-degree  forward 
flexion, which would justify a 20% rating.  The applicant argued that the FPEB illogi-
cally  ignored  the  January  27,  2006,  measurement  of  his  forward  flexion  yet  relied  on 
that day’s measurement of his total ROM.  There is nothing illogical about finding the 
aggregated results  of  tests  of  many  types  of  motion  more  compelling  or  indicative  of 
disability than the results of the testing of just one type of motion.  The Board notes that 
while  the  applicant’s  physical  therapist  stated  during  the  FPEB  hearing  that  forward 
flexion was a “pretty good” indicator of functional limitations, she also stated that the 
sum total ROM provided a “more global picture” of his amount of motion. 

 
8. 

The  record  shows  that  the  applicant  received  all  due  process  under  the 
PDES as his case was considered by an IMB, CPEB, FPEB, PRC, the Chief Counsel, and 
CGPC.    His  requests  for  reconsideration  by  the  CPEB  and  the  FPEB  were  timely 
reviewed and addressed. 

 
9. 

 The applicant has not proved by a preponderance of the evidence that his 
20% disability rating for intervertebral disc syndrome is erroneous or unjust.  Accord-
ingly, his request should be denied. 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, 

ORDER 

 

 

 Bruce D. Burkley 

 

 

 

                                                             
 

USCG, for correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

 
 

 
 

 
 

 

 
 

 

 
 

 
 
 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 
 Harold C. Davis, M.D. 

 

 

 

 

 
 George A. Weller