DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-135 
 
xxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

 

 
 

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 Chair docketed the case on June 30, 2006, 
upon receipt of the applicant’s completed application and military and medical records. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  May  11,  2007,  is  approved  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to correct his record to show that he was retired from the 
Coast Guard on January 23, 1973, by  reason of a physical disability, rather than having been 
discharged with severance pay. The applicant was discharged from the Coast Guard due to brain 
disease rated as 10 percent disabling, for which he received severance pay.  To be retired from 
the Coast Guard by reason of physical disability, the applicant's disability must be at least 30 
percent disabling.  
 
 
The applicant alleged that in addition to being diagnosed with brain disease, he was also 
diagnosed with Meniere’s disease1 which he alleged was not considered by the Formal Physical 
Evaluation Board (FPEB).  He stated that he still has Meniere’s Disease, and that it is likely to 
lead  to  dementia.    The  applicant  also  stated  that  recently  he  was  diagnosed  with  Lewy  Body 
Dementia and with a Mild Cognitive Impairment with early signs of Alzheimer’s disease.   He 
stated that the Department of Veterans’ Affairs (DVA) has rated his disabilities as 80 percent 
disabling and determined that he is not employable.   
 
 
With  respect  to  discovery  of  the  alleged  errors,  the  applicant  stated  that  he  did  not 
discover  them  until  November  6,  2002,  which  he  stated  was  less  than  three  years  after  his 
                                                 
1   Meniere’s disease is defined as hearing loss, tinnitus, and vertigo resulting from non-supportive disease of the 
labyrinth with edema.   Dorland’s Illustrated Medical Dictionary, 29th Edition, p. 520. 

Meniere’s disease was reconfirmed and less than three years after his diagnoses for Lewy Body 
Dementia and Mild Cognitive Impairment. 
 

SUMMARY OF THE RECORD 

 

On  August  5,  1968,  the  applicant  enlisted  in  the  Coast  Guard.    In  February  1969,  he 
suffered head trauma playing football.  Approximately one month after that injury, the applicant 
began complaining of episodic headaches and feelings of unsteadiness.   

 
On  August  28,  1970,  the  applicant  was  admitted  to  St.  Mary’s  hospital  because  of  a 
severe  spell  of  vertigo,  followed  by  momentary  unconsciousness.    His  initial  diagnosis  was 
headaches and dizziness.  While at St. Mary’s the applicant’s cold coloric exam2 was “strongly 
positive.”    When  discharged  from  the  hospital  on  September  2,  1970,  he  was  diagnosed  with 
possible Meniere’s disease.  However, because the applicant was due to be transferred from St. 
Mary’s  to  a  Marine  hospital  in  Galveston  on  September  2,  1970,  the  doctor’s  discharge  note 
indicated that Galveston would follow up on the diagnosis of possible Meniere’s disease.   

 
On September 2, 1970, the applicant was admitted to the Marine hospital and evaluated 
for complaints of headaches and dizziness.   X-rays of the applicant’s chest and skull revealed no 
abnormalities  and  the  urinalysis,  uric  acid,  CBC,  FBS,  bun,  creatinine,  and  VDRL  were  all 
within normal limits.  The narrative summary  report stated that an EEG, brain scan and  echo 
encephalogram,  and  skull  series  were  all  within  normal  limits.    The  report  noted  that  a  cold 
caloric test produced  dizziness.  The report also noted that the applicant’s hearing was within 
normal  limits,  but  an  ear,  nose  and  throat  (ENT)  specialist  stated  that  the  applicant  could  be 
suffering from possible Meniere’s syndrome and /or an anxiety reaction.  The applicant was told 
to  follow-up  with  ENT  as  an  outpatient.    The  applicant  was  discharged  from  the  Galveston 
hospital with a diagnosis of possible post-concussion syndrome.   
 

On  March  9,  1971,  the  applicant  was  re-evaluated  for  headaches.    The  physician 
performing the medical examination stated that the applicant’s headaches were troublesome but 
they had not prevented him from working.  The medical examination revealed no abnormalities.  
The physician’s impression was as follows: 

 
Post concussion syndrome and labile hypertension.  I do not feel any further tests 
are indicated at this time. A trial of Cafergot in the specified way . . . would seem 
warranted,  and  certainly  periodic  follow-up  examination  remains  indicated.  
Unfortunately, symptomatic treatment     . . . seems all that is presently available 
in lieu of the negative evaluation.   
 
The medical record shows that the applicant was hospitalized again from September 27, 
1971, until October 5, 1971, with complaints dizziness.  He was diagnosed with post-concussion 
syndrome and determined to be fit for modified shore duty until an ENT evaluation. 

 

                                                 
2      The  cold  caloric  test  consist  of  injecting  warm  or  cool  water  or  air  into  the  ear  canal  to  detect 
involuntary 
See  
http://health.yahoo.com/ency/healthwise/hw205591. 

eye  movements 

occur  when 

vertigo. 

person 

that 

a 

has 

 

On  October  18,  1971,  the  applicant  underwent  an  audiogram,  which  revealed  that  his 
hearing was within normal limits bilaterally.  The report noted mild sensorineural3 in both of the 
applicant’s ears.     
 

The applicant requested a Board of Medical Survey (BMS) and was referred for another 
medical  evaluation  for  that  purpose.    On  March  20,  1972,  the  BMS  physician  diagnosed  the 
applicant with a post-concussion syndrome that was treated with analgesics.  The physician also 
determined  that  the  applicant  was  fit  for  duty,  but  referred  the  applicant  for  a  neurological 
consultation.  The applicant was seen by a neurologist that same day and nothing significant was 
found.   
 
The  BMS  met  on  March  23,  1972.   It  diagnosed  the  applicant  as  suffering  from  post- 
concussion syndrome, but found that he was qualified to perform the duties of his rate ashore and 
at sea.  The applicant submitted a statement in response to the BMS and stated that “due to the 
post concussion syndrome, I believe that I am unable to perform my duties in a responsible and 
safe  manner.”    He  indicated  he  was  concerned  for  the  safety  of  others  should  he  experience 
unexpected dizziness or unconsciousness.  He also noted that although he had been diagnosed 
with probable post concussion syndrome and possible Meniere’s syndrome, no reason or cure 
had been found for his headaches and dizziness.    

 
The applicant’s case was referred to the Central Physical Evaluation Board (CPEB).4  On 
April 24, 1972, the CPEB met and considered the applicant’s case.  The CPEB determined that 
the applicant was fit to perform the duties of his rate.   

 
On May 11, 1972, the applicant requested a hearing before a Formal Physical Evaluation 
Board  (FPEB)5  and  he  also  requested  representation.    Coast  Guard  counsel  was  assigned  to 
represent the applicant, and on August 18, 1972, the FPEB held a hearing in the applicant’s case.   
Two doctors were called as witnesses at the hearing. 

 
  The applicant’s counsel asked one of the doctors whether the applicant suffered from 

possible Meniere’s syndrome.  The doctor answered as follows: 

 
Meniere’s syndrome is a complex of symptoms classically which include not only 
dizziness and actually this dizziness is vertigo which is a whirling sensation which 
usually last anywhere from one to six hours, accompanied by nausea or vomiting.  
Hearing loss sometimes preceded by feeling a pressure or fullness in the ear, and 

                                                 
3   Sensorineural is defined as pertaining to or affecting a sensory mechanism and/or a sensory nerve.   Id. p. 1623. 
  
4      The  Central  Physical  Evaluation  Board  is  a  permanently  established  administrative  body  that  evaluates  on  a 
records  basis  the  fitness  for  duty  of  active  and  reserve  members  and  the  fitness  for  duty  of  members  on  the 
temporary  disability  retired  list.    See  Chapter  4.A.1.  of  the  Physical  Disability  Evaluation  System  Manual 
(COMDTINST M1850.2C). 
 
5 The FPEB is a fact-finding body, which holds an administrative hearing to evaluate a member's fitness for duty and 
to  make  recommendations  consistent  with  the  findings.    This  hearing  is  not  an  adversarial  proceeding,  and  the 
implication of litigation must be avoided.   See Chapter 5.A.1. of the Physical Disability Evaluation System Manual 
(COMDTINST M1850.2C). 

it’s  usually  accompanied  at  some  point  by  permanent  hearing  loss.    [S]o  [the 
applicant]  doesn’t  fall  in  this  category  because  of  the  way  he  describes  his 
dizziness.   
 

Then the applicant’s counsel asked the following question: 

 
Are  symptoms  always  associated  with  Meniere’s  syndrome  or  is  it  sometimes 
present in such a form that all these symptoms can be diagnosed.  In other words, 
what I’m saying is, is it possible that he can have some trace of this but in such a 
form that [it] can’t be diagnosed at this time because it hasn’t progressed to such a 
state? 
 

 
It’s always possible something might develop later, but right now we can’t call it 
Meniere’s because it doesn’t fit the description.   

The physician responded: 

disability rating and severance pay. 

 

Decision of the Department of Veterans Affairs (DVA) 

 

After  a  presentation  of  evidence  by  the  government  and  the  applicant,  the  FPEB 
determined that the applicant was unfit to perform the duties of his rate and should be discharged 
with a 10% disability rating due to the following: 

 
VA  Code  number  8045,  brain  disease,  purely  subjective  complaints  such  as 
headaches, dizziness, insomnia, tinnitus, etc. recognized as symptomatic of brain 
trauma,  which  will  be  rated  at  10%  and  no  more  under  diagnostic  code  9304, 
which  is  chronic  brain  syndrome  associated  with  brain  trauma.    This  has  been 
tempered by VA Code 8045. 

 
 
The  applicant  submitted  a  rebuttal  to  the  FPEB  findings  and  recommendations.    He 
alleged that he had not had a thorough neurological evaluation and had only seen a neurologist 
for approximately five minutes.  He requested a complete neurological evaluation. 
 

On November 16, 1972, the Physical Review Council concurred in the findings and facts 
by the FPEB. The PRC also agreed with the recommendation that the applicant be discharged 
from the Coast Guard with severance pay. 

 
On  January  10,  1973,  the  Chief  Counsel  of  the  Coast  Guard  reviewed  the  physical 
evaluation  board  proceedings  and  found  them  to  be  technically  correct,  found  them  to  be  in 
acceptable form, and found that the evidence supported the findings. 

 
On  January  15,  1973,  the  Coast  Guard  Chief  of  the  Office  of  Personnel  approved  the 

FPEB and directed that the applicant be separated from the Coast Guard with severance pay.   

 
On  January  23,  1973,  the  applicant  was  honorably  discharged  with  a  ten  percent 

 
On  July  20,  2001,  the  DVA  issued  a  decision  denying  the  applicant’s  request  for  
disability compensation for Meniere’s syndrome.  Subsequently, the applicant filed a request to 
reopen that claim.   

 
On November 7, 2003, the DVA issued a decision granting the applicant a 30% disability 
rating for Meriere’s syndrome effective from January 29, 2001, the date of the reopened claim.  
The DVA stated the following: 

 
The  injury  occurred  on  August  27,  1970  in  which  you  were  diagnosed  with 
Meniere’s  syndrome  by  the  military  doctor  after  the  physician  performed  an 
examination in service.  The doctor notes that you were having such symptoms as 
headaches and dizziness as far back as 1969.  Testing and examination revealed a 
diagnosis of Meniere’s syndrome in service as noted in 1970.  You also sustained 
a  head  injury  in  service  and  have  service  connected  hearing  loss  and  tinnitus 
related  to  service.    VA  examinations  cited  shows  your  inner  ear  dizziness  and 
pathology  does  not  indicate  it  is  a  vestibular-type  dysfunction  based  on  Dix-
Hallpike testing on VA exam of [May 2001].  Your dizziness is most likely not 
from an inner ear pathology.  However, the tinnitus as noted on prior examination 
was not ruled-out to be unrelated to the head injury and electrocution as well.         
 
You had this diagnosis in service and your treating physician, an ENT, notes you 
still  carry  this  disease  to  date  with  hearing  loss.    VAMC  treatment  reports  as 
recent as January 2003, shows your doctor notes you have had worsening tinnitus 
related  to  Meniere’s  disease  over  the  last  three  months  and  occasional  vertigo 
with  the  last  significant  attack  six  months  ago.    Exam  shows  normal  ears  and 
nose.  The physician diagnosed Meniere’s disease, stable hearing, with increase in 
tinnitus.    The  statement  from  your  physician  clearly  shows  you  have  the 
syndrome  and  records  confirm  the  diagnosis  even  though  the  VA  exam  cited 
shows the negative finding for Meniere’s.  The evidence from an ENT specialist 
is  afforded  more  weight  in  granting  service  connection.    All  doubt  has  been 
resolved in favor of the claim.   

 
 
In addition to the 30% disability rating for Meniere’s syndrome, the DVA increased the 
applicant’s  disability  rating  for  post-concussive  syndrome  with  headaches  and  cognitive 
impairment to 70 percent.  The DVA also granted the applicant a 10-percent disability rating for 
tinnitus and 0 percent disability rating for hearing loss, for a combined 80-percent total disability 
rating.   
 

The DVA determined that the applicant not to be employable effective March 12, 2002.  
The DVA’s psychological compensation and pension examination dated April 21, 2003, stated 
that  the  applicant  was  a  highly  successful  businessman  until  approximately  1997.    It  further 
reported that he had worked in the oil fields as an oil gauger, as a ship manager, as a ship agent 
coordinating  loading  and  unloading  oil  tankers,  and  as  an  import/export  agent  helping  to 
transport crushed rock, and that he had worked in Saudi Arabia and in the Caribbean.  The DVA 

 

On  November  20,  2006,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted an advisory opinion recommending that the Board deny the applicant’s request and to 
accept  the  comments  from  Commander,  Coast  Guard  Personnel  Command  (CGPC)  as  the 
advisory opinion. 

 
CGPC  noted  that  the  application  was  not  timely.    In  this  regard,  CGPC  stated  that 
although the applicant contended that his application was submitted within three years of a 2002 
confirmatory diagnosis of Meniere’s syndrome and a new diagnosis of Lewy Body Dementia, 
these  subsequent  diagnoses  do  not  justify  an  error  or  omission  regarding  his  original  record.   
CGPC further stated: 

doctor, who examined the applicant for hypertension in August 2002, noted that the applicant 
had worked in electronics and in administration and management from 1973 to 1998.   
 

VIEWS OF THE COAST GUARD 

 
2.  I find no evidence that the Coast Guard’s decision in this matter was in error or 
unjust.    The  record  indicates  that  the  findings  and  recommendations  were 
reasonable and appropriate.  Furthermore, the matters of record strongly support a 
conclusion that the applicant was afforded his full due process rights.  From the 
Initial  Medical  Board    .  .  .    the  applicant’s  case  continued  through  the  PDES, 
including the applicant’s appearance before the FPEB . . .  and evaluation by the 
Physical  Review  Council,  which  supported  the  FPEB  findings    .  .  .      The 
applicant’s  [FPEB]  was  also  reviewed  by  the  Coast  Guard  Chief  Counsel  and 
approved by the Final Approving Authority for the Commandant.  I find no error 
in this process or the decision of the Board.   
 
3.  While the applicant continues to disagree with the findings of the FPEB, his 
concerns were adequately addressed by the [FPEB].  The applicant was afforded 
due  process  and  properly  represented  by  counsel  during  the  proceedings.    The 
FPEB properly considered expert testimony during the proceedings in weighing 
the disability rating decision.  The applicant is basing his contention of an error or 
injustice . . . upon the presumption that the Board did not consider the diagnosis 
or  Meniere’s  syndrome  in  determining  his  disability  rating.    The  Report  of 
Proceedings . . . indicates that the [FPEB] considered the provisional diagnosis of 
Meniere’s syndrome was inconclusive.  [One of the two medical doctors at the 
FPEB  stated,]  “right  now  we  can’t  call  it  Meniere’s  because  it  doesn’t  fit  the 
description.” 
 
4.  The applicant indicates that the VA awarded him a disability rating of 80%.  
The  subsequent  VA  disability  (30  years  post  discharge)  does  not  reflect  an 
incorrect  rating  or  omission  when  he  was  processed  through  the  PDES.    The 
military  disability  system  determines  unfitness  for  duty  and  than  rates  only  the 
extent that the unfitting medical condition or conditions prevent the member from 
performing their duties at that time.  The VA ratings are based on an evaluation of 
the whole person, including the evaluation of the evaluee’s employability status 

and earning capacity.  Accordingly, VA ratings are not determinative of the issues 
involved  in  military  disability  rating  determinations.    Fluctuation  in  rating  over 
time is not unexpected and the Applicant’s current physical disabilities are being 
addressed through the appropriate venue.  The evaluation of the applicant at the 
time of discharge is not effected by subsequent VA disability rating.   
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On February 2, 2007, the Board received the applicant’s reply to the views of the Coast 
Guard.  On February 4, 2007, the applicant submitted an addendum to his original reply.  The 
applicant alleged in each response that the  FPEB did not consider the  medical documentation 
that showed that he had been diagnosed with Meniere’s disease.   In this regard, he stated the 
following: 
 

1.    If  the  condition  of  Meniere’s  disease  would  have  been  considered  by  the 
[FPEB] based upon the medical diagnosis provided by Dr. [B],  . . . and Dr. [C], 
MD/ENT, an assignment of 30% disability would have been appropriate to that 
finding.  However,  prior  to  convening  the  Board,  I  requested  to  present  the 
findings  from  these  doctors  dated  September  1970,  but  was  denied  that 
opportunity.   
 
2.    The  brain  disease/head  trauma  findings  would  have  increased  the  disability 
rating, and had it been fully understood as to the extent of the trauma, it would 
have probably been a much higher rating. 
 
3.    Even  though  I  continued  to  suffer  from  many  symptoms  of  the  above 
conditions,  including  headaches,  dizziness,  nausea,  loss  of  memory,  inability  to 
concentrate, tinnitus, etc., I was denied further treatment.  I rebutted the findings 
of the FEB and requested further medical evaluation.  This was denied by the fact 
of the medical discharge awarded by the Board.  
 
4.  Although I was provided with a counselor, he was not assigned in advance of 
the  PEB  meeting,  eliminating  the  possibility  that  we  could  discuss  my  case.  
Further, the counselor had no legal or medical training on which to rely to help in 
presenting my case.   
 

* 

 

  * 

 

* 

 
I rebutted the findings of the MEB and PEB.  I requested in my rebuttal that I be 
provided with additional testing and evaluation to determine the full nature of my 
medical  condition.    The  counsel  provided  me  was  not  appropriately  and  timely 
provided,  and  did  not  possess  the  knowledge,  skills,  or  training  to  assist  in  a 
medical setting or Physical Evaluation Board.  My medical condition at the time 
of the MEB and PEB was not at sufficient capacity to properly represent myself, 
in  that  I  suffered  from  memory  loss,  confusion  and  inability  to  concentrate,  as 

 

SUMMARY OF APPLICABLE LAW 

 
Disability Statutes 
 
 
Title 10 U.S.C. § 1201 provides that a member who is found to be “unfit to perform the 
duties of the member’s office, grade, rank, or rating because of physical disability incurred while 
entitled to basic pay” may be retired if the disability is (1) permanent 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)6  
 
 
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 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 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  disease  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 

documented in the PEB report.  I do not consider this to have been “a full and fair 
hearing.” 

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 

                                                 
6   The Board does not maintain regulations that governed the Physical Evaluation Board in 1973.  The 
applicant has provided no evidence that earlier regulations, if they existed, were significantly different 
from the current one.   

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 
percentage of disability will be provided.  

 

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 applicable 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.  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 
thirty-two  years  after  the  applicant’s  FPEB  proceedings  and  discharge  from  the  Coast  Guard.  
The applicant suggested that his application is timely because it was submitted within three years 
after his Meniere’s disease was reconfirmed and within three years after his diagnosis of Lewy 
Body Dementia and Mild Cognitive Impairment with early signs of Alzheimer’s.   However, the 
applicant knew that he had been diagnosed with possible Meniere’s syndrome in 1970.  He also 
knew that the FPEB did not agree that he suffered from Meniere’s disease at that time.   The 
transcript  of  the  FPEB  hearing  has  a  discussion  between  the  applicant’s  counsel  and  a  doctor 
about the applicant having a diagnosis of possible Meniere’s disease.  Therefore, the applicant 
knew at the time of his discharge that he had not been found unfit due to Meniere’s disease and 
should have filed his application within three years of his discharge.   
 
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.    
 

4.  Based upon a review of the merits in this case, the Board finds that it is not in the 
interest of justice to waive the statute of limitations and consider the application on the merits.  
Although  there  is  some  evidence  in  the  Coast  Guard  medical  records  that  the  applicant  was 
diagnosed with possible with Meniere’s disease in 1970, there is other evidence that he did not 
suffer from Meniere’s disease while in the Coast Guard.  In this regard, the Board notes that after 
the  St.  Mary’s  and  Galveston  hospitalizations,  the  applicant  was  evaluated  three  other  times, 
none of which produced a diagnosis of Meniere’s disease.  On March 9, 1971, the applicant was 
re-evaluated  for  headaches  and  diagnosed  with  post-concussion  syndrome  and 
labile 
hypertension.    The  physician  performing  the  medical  examination  stated  that  the  applicant’s 
headaches  were  troublesome  but  they  had  not  prevented  him  from  working.    The  medical 

examination revealed no abnormalities.  The September 27, 1971, hospital discharge summary 
stated that the applicant was diagnosed with post-concussion syndrome, but he was determined 
to  be  fit  for  modified  shore  duty  until  an  ENT  evaluation.    The  audiogram  ordered  by  ENT 
revealed hearing within normal limits with minimal sensorineural noted bilaterally.    Further, a 
March 20, 1972 medical examination for the MEB found the applicant fit for duty.  Moreover, a 
medical witness at the FPEB stated that based on the applicant’s description of his dizziness, his 
symptoms  did  not  fall  within  the  category  of  Meniere’s  disease.    The  applicant  had  any 
number  of  tests  during  the  approximately  three-year  period  that  he  was  being 
evaluated for headaches and dizziness, with only one test, a cold choleric test in 1970, 
being “strongly positive,” the Board assumes for possible  vertigo.    However, neither 
that one test nor the 1970 diagnosis of possible Meniere’s disease is sufficient to prove that the 
Coast Guard committed an error by not diagnosing the applicant with Meniere’s disease upon his 
discharge in 1973.  In this regard, the Board finds that the overwhelming majority of the other 
medical  tests  and  physical  evaluations  in  the  applicant’s  Coast  Guard  medical  record  showed 
only that he suffered from post-concussion syndrome. 

 
5.  Even if Meniere’s disease had been noted on the Medical Survey, the applicant has not 
shown that it was a condition that caused him to be unfit for continued duty at the time of his 
discharge.  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  disease  or  injury 
incurred or aggravated through military service.” Chapter 2.C.2.f.i. makes it clear that a member 
may have physical impairments ratable in accordance with the VASRD, but such impairments 
may  not  necessarily  render  the  member  unfit  for  military  duty.    The  preponderance  of  the 
evidence at the time of the applicant’s discharge did not support a finding of unfitness for duty 
due  to  Meniere’s  disease.    A  medical  diagnosis  by  the  DVA  some  thirty  years  after  the 
applicant’s    discharge  from  the  Coast  Guard  does  not  establish  that  at  the  time  of  his    1973 
discharge the applicant was unfit to perform the duties of his rate due to  Meniere’s disease or 
any of the other conditions currently rated by the DVA, except for post concussion syndrome.   

 
6.    The  Board  would  also  note  that  after  his  discharge  the  applicant’s  dizziness  and 
headaches did not prevent him from gainful employment in the oil fields as an oil gauger, as a 
ship  manager,  as  a  ship  agent  coordinating  and  loading  and  unloading  oil  tankers,  as  an 
import/export  agent  helping  to  transport  crushed  rock,  or  working  in  Saudi  Arabia  and  in  the 
Caribbean.    The  DVA  psychological  compensation  and  pension  examination  dated  April  21, 
2003, stated that the applicant was a highly successful businessman until approximately 1997.  
The DVA doctor, who examined the applicant for hypertension in August 2002, noted that the 
applicant had worked in electronics and in administration and management from 1973 to 1998.  
The  applicant’s  ability  to  successfully  engage  in  such  employment  for  approximately  twenty-
three years after his discharge supports the 10% disability rating awarded by the FPEB, which 
indicated that the interference of the applicant’s disability with his ability to perform his military 
duties was limited.  

` 
7.    Although  the  applicant  submitted  evidence  showing  that  the  DVA  has  recently 
increased his post concussion syndrome disability rating, granted additional disability ratings for 
other  conditions,  and  determined  that  he  is  not  employable,  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."   
 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

8.  For those  conditions that are  currently  rated  by the DVA  as service  connected  and 
disabling but were not present or had not manifested themselves at the time of the applicant’s 
discharge,  the  DVA  is  the  appropriate  forum  for  the  applicant  to  receive  compensation  and 
treatment for the additional disabilities and/or aggravations.   
 

9.    The  applicant  made  various  complaints  about  the  competence  of  his  Coast  Guard 
counsel and the alleged denial of due process in the FPEB hearing.  These are matters that the 
applicant was aware of or should have been aware of at the time of his discharge. A challenge to 
the  FPEB  proceedings  should  have  been  brought  well  before  thirty  years  had  elapsed.    In 
addition,  the  Board  notes  that  the  evidence  offered  by  the  applicant  to  prove  ineffective 
assistance of counsel and the lack of a fair hearing before the FPEB consists only of his own 
statement.  Mere allegations are insufficient to prove an error or injustice in the PEB process or 
in discharging the applicant.    

 
10.  Accordingly, due to the approximately thirty-year delay in bringing this claim, the 
lack of a persuasive reason for not acting sooner, and the probable lack of success on the merits 
of his application, the Board finds that it is not in the interest of justice to waive the statute of 
limitations.  Nor is there persuasive evidence of error or injustice by the Coast Guard.  Therefore, 
the applicant’s request for relief should be denied. 
 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

his military record is denied. 
 

ORDER 

 

 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

        

 
 Toby Bishop 

 

 

 
 James E. McLeod 

 

 

 
 
 Adrian Sevier