DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-126 
 
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX 
   

 

 
 

FINAL DECISION 

 
 
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 docketed upon receipt of 
the applicant’s completed application on March 11, 2010, and the Chair subsequently prepared 
the final decision as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated December 30, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST  

 
 
The  applicant  asked  the  Board  to  correct  his  record  by  increasing  his  disability  rating 
from 30% to 100%.  The applicant retired from the Coast Guard on April 30, 2007, by reason of 
physical disability due to general anxiety disorder.   
 

 ALLEGATIONS 

 

 
The applicant alleged that the 30% disability rating is unjust.  He stated that he intended 
to appeal the 30% rating assigned to him by the Informal Physical Evaluation Board (IPEB)  1  
until his physical evaluation board (PEB) attorney  advised him that he  could possibly receive 
less than 30% by going before the Formal Physical Evaluation Board (FPEB).  He stated that 
with the attorney’s failure to return his phone calls and with the date approaching for the FPEB 
hearing, “I capitulated to the 30% and regretfully agreed to medically retire.”  He stated that it 
appeared  to  him  that  his  attorney  was  overwhelmed  with  her  case  load  and  was  not  able  to 
review his file for weeks and that her advice that he should accept the 30% rating “was a low key 
perceived threat to forego the FPEB or face the possibility of a further loss of benefit.” 
 

                                                 
1 An IPEB is a standing administrative board that evaluates medical evaluation board reports.  Chapter 2.A.25. of the 
PDES Manual.   

 
The  applicant  stated  that  he  sustained  a  head  injury  when  he  was  hit  with  a  20-pound 
sledge hammer on March 13, 2001, that shattered several bones in his face and his teeth.  He 
underwent  surgery  and  after  recovery  he  completed  officer  candidate  school  (OCS)  and 
continued with his duty assignments.  He stated that he did not receive any medical follow-up for 
the facial injuries.  The applicant stated that  several  years after the head injury, he underwent 
surgery to remove a tumor from his esophagus, which he attributed to the stress and side-effects 
of the facial injury.  After recovering from this surgery, he reported to a new duty station, where a 
corpsman noted that the applicant should have had follow-up treatment for the head injury.  The 
applicant stated that by this time he was having critical memory retention problems and difficulty 
multi-tasking.    He  stated  that  he  underwent  a  battery  of  tests,  including  neurological, 
psychological, sleep disorder, hearing, dental, and sinusitis testing.  He stated that he was found 
to  be  non-deployable  and  was  offered  the  opportunity  to  retire  with  a  30%  disability  rating, 
which he accepted, but now believes to be unjust because the injury terminated his career.  The 
applicant concluded his statement with the following: 
 

If it would be possible for you to intervene and recommend a disability of 100% 
at  least  I  would  have  a  financial  chance  to  start  a  new  career  and  support  my 
family  with  other  educational  benefits  and  can  still  become  a  contributing 
member of the community.  I will certainly be trying for civil service position and 
a higher compensation rating would help financial support for me and my family.  

 

BACKGROUND 

 

On March 13, 2001, the applicant was hit in the head with a sledgehammer that required 

some reconstructive surgery to his face. 

 
On  April  21,  2005,  the  applicant  was  referred  to  a  psychiatrist  for  evaluation  and 

treatment because he was experiencing flashbacks associated with the injury.   

 
On April 26, 2005, the applicant was referred for a sleep evaluation because of insomnia.  
The examiner stated that he believed the applicant had an anxiety disorder “variant of PTSD” 
that caused the insomnia.  A further sleep study  was ruled out because an earlier one did not 
reveal the applicant had significant sleep disordered breathing.  The applicant was treated with 
Zoloft and Lunesta.   

 
On May 13, 2005, the applicant was evaluated by a psychiatrist.  His chief complaints at 
that time were increased anxiety, low energy, and poor concentration.  On mental examination, 
the applicant was alert, oriented, fairly well groomed, cooperative, euthymic, and anxious.  He 
exhibited good eye contact, normal speech, and good judgment.  The psychiatrist stated that his 
impressions  were  that  the  applicant  suffered  from  general  anxiety  disorder,  history  of  head 
injury, and mental and social stress.  The psychiatrist took the applicant off of Zoloft and started 
him on Cymbalta.   

 
On October 4, 2005, the applicant underwent a fitness for duty evaluation because of the 
various medications that he had taken or was taking.  The medical report stated that the applicant 
complained that he “was hit in the head by a sledge hammer while enlisted.  I was hit in the face, 

had  a  lot  of  facial  trauma  and  afterwards:    I  couldn’t  fall  asleep;  I  have  trouble  with 
concentration and now I have problems with motivation.”  The physician reported that on mental 
examination,  the  applicant  had  no  evidence  of  delusions  or  ideas  of  references  and  that  his 
thought processes were logical and goal-directed.  The physician noted no evidence of looseness 
of association, flight of ideas, paranoia or grandiosity.  The physician further stated: 
 

Cognitively, the [applicant] was alert and oriented x 5.  His ability to recall recent 
and  remote  information  was  judged  to  be  grossly  intact.    The  [applicant] 
functioned as an excellent historian, giving biographical and medical information, 
which was corroborated by the patient’s medical record which was available for 
the  examiner  to  review.    Medical  records  from  Dr.  [FF2]  were,  however,  not 
available for the examiner to review.   

 

[The applicant’s] ability to attend and concentrate throughout the interview was 
judged to be grossly intact.  His current level of functioning has been stabilized on 
his present medication regime.  A specific inquiry into the signs and symptoms of 
depression,  anxiety  and  PTSD  were  positive  for  such  symptoms  as  flashbacks, 
nightmares, hyperarousal and dissociative symptoms.       
 
The  applicant’s  fitness  for  duty  examination  resulted  in  the  following  diagnoses: 
“Depressive  disorder  secondary  to  traumatic  brain  injury,  anxiety  disorder  secondary  to 
traumatic  brain  injury,  rule/out  PTSD,  sleep  disorder  secondary  to  traumatic  brain  injury,  and 
rule/out cognitive disorder, not otherwise specified secondary to traumatic brain injury.”  The 
examiner  found  the  conditions  minimally  impacted  the  applicant’s  fitness  for  military  service 
and  that  they  had  a  mild  impact  on  his  civilian  social,  industrial  adaptability.    Among  other 
recommendations, the examiner stated that there “are no contraindications to deployment of this 
Coast Guard personnel at this time.  He has been stable on his present medication regimen for 
four months.” 
 

On  January  11,  2007,  the  applicant  was  evaluated  by  an  initial  medical  board  (IMB) 
because he was diagnosed with cognitive deficit not otherwise specified (NOS) and history of 
closed head injury as of March 2001.  The medical board reported the following in pertinent part: 

 
[The applicant] states that since the time of his head injury, he has experienced 
difficulty  with  multitasking,  short  term  memory,  concentration,  sleep  initiation 
and  bilateral  tinnitus.    Due  to  these  symptoms,  member  has  undergone  several 
evaluations and treatments.  On 14 May 02, [the applicant] underwent sleep study 
. . . which resulted in a diagnosis of obstructive sleep apnea (OSA).  However, 
trial  of  CPAP  was  never  accomplished.    Additionally,  member  received 
psychiatric evaluation by Dr. [F] and diagnosed with generalized anxiety disorder.  
He  was  tried  on  numerous  medications  to  include  Lexapro,  Zoloft,  Cymbalta, 
Lunesta,  Trazodone,  Atarax,  and  Restoril  without  success.    Seroquel  ultimately 
did  assist  with  sleep  initiation  and  has  been  continued  to  this  day.    Finally, 
psychiatric  fitness  for  duty  evaluation  was  performed  on  4  Oct  05  at  MacDill 
AFB . . .  Recommendations at that time included completion of OSA evaluation, 

                                                 
2  Dr. FF is a psychiatrist who had treated the applicant earlier. 

 

behavioral health therapy, and neuropsychological testing.  Unfortunately, these 
suggestions were not acted upon and member PCS’d [transferred on  permanent 
change of station orders], reporting for duty as operations officer aboard ALDER 
in Duluth, MN during June of 2006.   

Once on board ALDER, [the applicant] experienced difficulty learning his new 
job and confided in his XO that he was having problems with short term memory, 
multitasking,  and  concentration.    Furthermore,  ALDER’s  corpsman  discovered 
the aforementioned medical issues on chart review.  [The applicant] was therefore 
placed on shore duty pending further evaluation.   
 
Beginning on 30 Nov 06, member began neuropsychological evaluation . . . which 
resulted in several significant findings.  First, the presence of anxiety with mild 
depressive  symptoms  .  .  .  was  confirmed.    Secondly,  member  was  noted  to 
demonstrate  low  to  borderline  function  in  multiple  areas  involving  short  term 
memory.  Dr. [F] also opined that these memory findings were not consistent with 
the head trauma experienced in March 2001.  However, the neuropsychologist felt 
that the disparity between verbal and performance IQ scores might be indicative 
of a lowered function.  Of note, concentration and ability to multitask appeared 
intact.    Finally,  although  PTSD  has  been  considered  on  several  occasions, 
diagnosis was not confirmed by neuropsychologist or by any other recent mental 
health consultant.   
 
Neurology consultation was obtained 11 Jan 2007 with CDR [A] at Great Lakes 
Naval  Health  Clinic  .  .  .  Dr.  [A]  concurs  with  findings  and  disposition  that 
member is not fit for sea duty.  However, he disagrees with neuropsychologist’s 
opinion regarding correlation of head injury to [the applicant’s] cognitive defect 
since these problems “temporarily” related to the time of the accident.   
 
MRI brain completed 03 Jan 2007 revealed incidental finding of a periventricular 
venous angioma but was otherwise normal.   
 
It is the opinion of this examiner the diagnosis of  
 
1.   Cognitive Disorder NOS . . . is correct. 
2.   Post concussion syndrome with h/o left tripod fractures s/p ORIF is correct. 
3.   Anxiety disorder . . . with mild depressive symptoms is correct. 
4.   Obstructive sleep apnea is correct.   
 
This  case  presents  several  challenges.    First,  neuropsychology  and  neurology 
opinions conflict on correlation of head injury to cognitive deficit.  However,  I 
tend to agree with CDR Anderson since these issues clearly surfaced by history 
following this head trauma and therefore have made the determination DNEPTE 
[did not exist prior to enlistment].  Additionally, member’s anxiety disorder has 
negatively  impacted  scenario  and  has  been  recalcitrant  to  multiple  medications.  
Finally treatment of OSA may provide some relief but overall impact will most 

likely be minimal at best.  Therefore, MEB is submitted without results of repeat 
sleep  study  with  trial  of  CPAP.    In  the  meantime,  this  member  has  clearly  not 
been  able  to  fulfill  the  requirements  of  his  current  billet  and  given  evaluations 
prior  to  PCS,  his  fitness  for  duty  has  been  in  question  for  quite  some  time.  
Subsequently, I believe [the applicant’s] prognosis for continued military service 
is poor. 
 

  # 

# 

# 

 

 
It is correct that member is not fit for full duty.  His condition is not compatible 
with sea duty or worldwide qualification.   
 
 
 
On January 24, 2007, the applicant’s commanding officer (CO) stated that he concurred 
with the findings of the medical board.  In this regard, he stated that the applicant’s condition is a 
direct result of injuries incurred in the line of duty in 2001 and that the member’s injuries created 
a  medical  situation  that  disqualifies  the  applicant  for  retention  in  the  Coast  Guard  and  he 
recommended that the member receive a 100% disability rating.   
 

 
On  January  26,  2007,  the  applicant  signed  a  statement  regarding  the  finding  of  the 
medical board where he acknowledged the diagnoses, the recommendation that he did not satisfy 
medical  retention  standards  and  referral  to  Commander,  Personnel  Command,  and  the 
recommendation for an indefinite period of limited duty with no sea duty.  The applicant also 
acknowledged that the medical board’s opinions and recommendations were not binding on the 
Coast  Guard  and  that  his  case  was  subject  to  further  review  and  final  disposition  by  higher 
authority.    He  also  indicated  by  his  signature  that  he  did  not  desire  to  submit  a  statement  in 
rebuttal to the medical board.   

 
On  February  5,  2007,  the  Informal  Physical  Evaluation  Board  (IPEB)  considered  the 
applicant’s  case.    The  IPEB’s  diagnosis  was  “generalized  anxiety  disorder:  occupational  and 
social  impairment  with  occasional  decrease  in  work  efficiency  and  intermittent  periods  of 
inability to perform occupational tasks (although generally functioning satisfactorily with routine 
behavior,  self-care  and  conversational  normal)  due  to  such  symptoms  as:  depressed  mood, 
chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent 
events).”  The IPEB rated the applicant’s condition as 30% disabling and recommended that he 
be permanently retired from the Coast Guard.  The IPEB provided an amplifying statement that 
read in part as follows:  
 

 By  a  preponderance  of  the  evidence  the  [IPEB]  finds  as  follows:    a.  [The 
applicant]  is  unfit  for  continued  duty  by  reason  of  physical  disability.  b.  The 
unfitting  condition  is  Generalized  Anxiety  (Department  of  Veterans  Affairs 
Schedule for Rating Disabilities (VASRD)) diagnostic code: 9400) rated as 30%.  
[The applicant’s] record supports the fact that his condition makes it impossible 
for  him  to  complete  the  tasks  normally  assigned  to  a  junior  officer.    He  is 
therefore unfit for continued military service.  Although there is some evidence 
that  the  condition  is  a  result  of  the  head  injury  that  occurred  in  2001,  the 
preponderance  of  the  evidence  both  from  his  medical  record  and  work 

record/history  supports  the  fact  that  the  two  are  not  related.    The  [IPEB] 
recommends that he should be permanently retired at a disability rating of 30%.   

 
 
On February 12, 2007, CGPC informed the applicant by letter of the IPEB’s findings and 
advised him to consult legal counsel before deciding whether to accept or reject the findings of 
the IPEB.  The applicant was advised that he could elect Coast Guard counsel at no cost to him 
or  he  could  elect  civilian  counsel  of  his  choice  at  his  own  expense.    On  the  same  date,  the 
applicant elected to consult with and be represented by assigned counsel at no cost to him.   
 
 
recommended disposition and waived his right to a formal hearing.   
 
 
of physical disability with a 30% disability rating.   
 

On  March  22,  2007,  the  applicant  by  his  signature  accepted  the  IPEB  findings  and 

On April 30, 2007, the applicant was honorably retired from the Coast Guard by reason 

VIEWS OF THE COAST GUARD 

 
 
On  June  18,  2010  the  Board  received  an  advisory  opinion  from  the  Judge  Advocate 
General  (JAG)  of  the  Coast  Guard.    He  adopted  the  facts  and  analysis  provided  by  the 
Commander, Personnel Service Center (PSC), and recommended that the applicant's request for 
relief be denied. 
 
 
PSC stated that the Coast Guard rated the applicant appropriately based on the law at the 
time of his PDES evaluation.  PSC discussed the Veterans Administration Schedule for Rating 
Disabilities (VASRD) code 8045 (brain disease due to trauma) rather than discussing the IPEB’s 
finding of unfitness due to generalized anxiety disorder.  PSC also noted that the applicant, with 
the  advice  of  assigned  counsel,  accepted  the  findings  and  recommendation  of  the  IPEB  and 
waived his right to a formal hearing before the Formal Physical Evaluation Board (FPEB). 
 

  

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

 
 
On June 22, 2007, the Board sent the applicant a copy of the views of the Coast Guard, 
but it was returned to the Board marked “wrong address.”  The staff sought and found a new 
address for the applicant and re-sent the advisory opinion to him on September 24, 2010.  The 
Board did not receive a reply from the applicant to the advisory opinion.  
 

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.” 
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

1.  The BCMR has jurisdiction of the case pursuant to section 1552 of title 10, United 

 
 
record and submissions, the Coast Guard's submission, and applicable law: 
 
 
States Code.  The application was timely. 
 
 
 2. Although a medical board diagnosed the applicant with several conditions, the IPEB 
found  only  generalized  anxiety  disorder  to  be  unfitting  for  retention.    Under  Chapter 
2.C.3.a.(3)(a)  of  the  PDES  Manual,  a  physical  evaluation  board  rates  only  “those  disabilities 
which make an evaluee unfit for military service or which contributes to his or her inability to 
perform military duty.” The applicant did not argue in his application that the other conditions 
listed by the medical board were unfitting for service and therefore, they are not addressed in the 
findings and conclusion of this decision.    
 
 
3.  The applicant requested a correction of his record to show that he was retired due to 
physical disability with a 100% disability rating instead of the 30% rating he actually received.  
However,  the  applicant  has  submitted  insufficient  evidence  to  prove  that  the  Coast  Guard 
committed an error by retiring him with a 30% disability rating for generalized anxiety disorder 
instead of a 100% rating.     
 
           4. Article 9.B.2. of the Physical Disability Evaluation System (PDES) Manual instructs 
participants in the PDES to use great care in selecting a member's VASRD code number and in 
its citation on the rating sheet.  There is nothing in the record that indicates such care was not 
exercised  by  the  IPEB.    Under  code  9400  of  the  VASRD,  indicators  for  a  30%  rating  are 
described as follows.  

 
 Occupational and social impairment with occasional decrease in work efficiency 
and  intermittent  periods  of  inability  to  perform  occupational  tasks  (although 
generally  functioning  satisfactorily,  with  routine  behavior,  self  care,  and 
conversation  normal),  due  to  such  symptoms  as  depressed  mood,  anxiety, 
suspiciousness,  panic  attacks  (weekly  or  less),  chronic  sleep  impairment,  mild 
memory loss (such as forgetting names, directions, recent events).   

 
The  majority,  if  not  all,  of  the  applicant’s  medical  evaluation  reports  noted  that  the  applicant 
experienced chronic sleep problems and short-term memory and concentration problems.  These 
symptoms fit the description for a 30% disability rating under the VASRD code 9400.               
 
        5.  For a 50% rating for generalized anxiety disorder, an evaluee’s symptoms must meet the 
following description: 
 

Occupational and social impairment with reduced reliability and productivity due 
to  such  symptoms  as:    flattened  affect;  circumstantial,  circumlocutory,  or 
stereotyped  speech;  panic  attacks  more  than  once  a  week;  difficulty  in 
understanding  complex  commands;  impairment  of  short  and  long-term  memory 
(e.g.  retention  of  only  highly  learned  material,  forgetting  to  complete  tasks); 
impaired  judgment,  impaired  abstract  thinking,  disturbances  of  motivation  and 
mood;  difficulty  in  establishing  and  maintaining  effective  work  and  social 
relationships. 

 
There  is  nothing  in  any  of  the  applicant’s  medical  reports  that  supports  finding  that  the 
applicant’s symptoms matched those for a 50% rating.  His symptoms were insomnia, inability to 
concentrate, short term memory problems, and lack of motivation.  Therefore, the applicant has 
failed to prove that the Coast Guard committed an error by rating his disability as 30% disabling.   

 
9. Accordingly, the applicant's request for relief should be denied. 
 
 
 
 
 
 
 
 
 
 

 
6.  Chapter 2.C.2.a. of the PDES Manual provides that the “sole standard” to be used 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.”  It  further  provides  that  each  case  is  to  be 
considered by relating the nature and degree of physical disability of the evaluee concerned to 
the requirements and duties that a member may reasonably be expected to perform in his or her 
office, grade, rank, or rating.  While the applicant’s CO recommended a 100% disability rating, 
he failed to explain the applicant’s duties and how his disability impacted his ability to perform 
those  duties.    The  purpose  of  the  IPEB  is  to  determine  whether  a  disability  is  unfitting  for 
continued  service  and,  if  so,  how  much  that  disability  interferes  with  a  member’s  ability  to 
perform the duties of his grade or office.  The applicant did not offer an argument in this regard.   

 
7.    Just  as  importantly,  the  Board  finds  that  the  applicant,  after  consultation  with  his 
Coast  Guard  assigned  counsel  accepted  the  IPEB's  findings  and  waived  his  right  to  an  FPEB 
hearing where he could have challenged the 30% disability rating.  The applicant has submitted 
no evidence, except for his own allegation, that he was not accurately counseled by his lawyer.  

 
8.  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.   

 

ORDER 

 

The application of XXXXXXXXXXX, USCG (Ret.), for correction of his military record 

 
 

is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Julia Andrews 

 

 
 
 Darren S. Wall 

 

 
 Kenneth Walton