DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-027 
 
 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  Chair  docketed  the  application  upon 
receipt  of  the  applicant’s  completed  application  on  November  16,  2010,  and  subsequently 
prepared the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated August  18,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST  

 
 
 The  applicant  asked  the  Board  to  correct  her  record  by  changing  her  disability  rating 
from 30% to 100%.  The applicant was retired by reason of physical disability on January 21, 
2008  with  a  30%  disability  rating.    She  asked  that  her  record  be  corrected  to  grant  her  the 
disability  ratings  awarded  by  the  Department  of Veterans Affairs  (DVA)  on August  26,  2008.  
The DVA granted the applicant a 100% disability rating for major depressive disorder with post 
traumatic stress disorder, 10% for lumbosacral strain, 10% for left foot plantar fasciitis, and 10% 
for right foot plantar fasciitis.   
 

 ALLEGATIONS 

 
 
The applicant, who was represented by a civilian attorney, wrote that the Formal Physical 
Disability  Evaluation  Board  (FPEB)1  recommended  that  the  applicant  be  permanently  retired 
from  the  Coast  Guard  with  a  30%  disability  rating  for  major  depressive  disorder  under  the 
Veterans Affairs  Schedule  for  Rating  Disabilities  (VASRD)  2  code  9434  and  a  0%  rating  for 
                                                 
1  The  FPEB  is  a  fact  finding  body  (in  the  Physical  Disability  Evaluation  System  (PDES))  that  holds  an 
administrative hearing to evaluate an individual’s fitness for duty and to make recommendations consistent with its 
findings.  Chapter 2.A. 17 of the PDES Manual (2006).   
2  The  VASRD    (38  CFR,  part  4)  is  used  by  the  PDES  boards  to  assign  codes  and  percentages  of  disability  for 
evaluees found unfit for duty.  Chapter 2.A. 55. of the PDES Manual. 

Plantar Fasciitis under VASRD code 5399/5310.  He stated that upon his advice as her counsel, 
the  applicant  accepted  the  FPEB  findings,  which  were  subsequently  approved  by  the 
Commander,  Coast  Guard  Personnel  Command  (CGPC).    The  applicant  retired  by  reason  of 
physical disability on January 21, 2008. 
 
 
The attorney stated that his advice to the applicant to accept the FPEB recommendation 
was offered in good faith because his analysis of the evidence, as presented in his brief to the 
FPEB,  merited  the  assignment  of  not  greater  than  a  50%  disability  rating  for  her  psychiatric 
disorders at that time.   He stated that his opinion in this regard was based upon a report from the 
applicant’s  treating  licensed  clinical  social  worker  (LCSW)  that  the  applicant’s  somatic 
complaints  and  depressive  symptoms  would  abate  when  stressors  in  her  life  were  resolved. 
Therefore,  the  attorney  concluded  that  it  was  in  the  applicant’s  best  interest  to  accept  a 
permanent rating that locked in her medical and other retirement benefits, instead of appealing 
the  FPEB  recommendation  and  risking  the  loss  of  retirement  benefits  if  her  condition  had 
improved by completion of the PDES process.  
 

The  attorney  stated  that  he  was  overly  optimistic  about  the  applicant’s  potential  for 
improvement because rather than improve, her condition continued to decline as evidenced by 
the DVA compensation examination, which occurred less than 6 months after her retirement from 
the Coast Guard.  The attorney argued that the Board should adopt all of the DVA ratings for the 
applicant’s various disabilities, retroactive to the date of her discharge.   
 
 
The record shows that on April 12, 2008, after her discharge, the attorney forwarded a 
disability  claim  to  the  DVA  on  the  applicant’s  behalf  and  requested  that  the  DVA  grant  her  a 
minimum combined rating of 80%.  In making his request to the DVA, the attorney submitted the 
same medical evidence that was considered by the FPEB.  He argued that the DVA should grant 
the  applicant  a  70%  rating  for  major  depressive  disorder/conversion  disorder/post-traumatic 
stress disorder, a 20% rating for bilateral plantar fasciitis, and a 10% for lumbosacral strain. 
  

BACKGROUND 

 

The applicant enlisted in the Coast Guard on January 3, 2006.  On December 7, 2006, she 
entered the Coast Guard Physical Disability Evaluation System (PDES)3 by undergoing an initial 
medical board (IMB)  4 for a diagnosis of “Chronic Bilateral Plantar Fasciitis.  The IMB noted 
that the applicant began receiving treatment for this condition on February 21, 2006, while in 
basic training.  The applicant continued to complain of bilateral plantar foot pain and was treated 

                                                 
3 The PDES is the structure within the Coast Guard composed of administrative boards and reviewing and approving 
authorities  for evaluating a  member’s physical ability to perform the duties associated  with  the  member’s office, 
rank, grade, or rating, and the equitable application of the law and regulations relating to separation or retirement of 
members because of physical disability.  Chapter 2.A.42. of the PDES Manual (2006).   
4 An IMB is a written report of a medical board convened by appropriate authority to evaluate a member's fitness for 
continued duty due to physical or mental impairments and to make recommendations consistent with the findings.  
Chapter  2.A.24  of  the  PDES  Manual  (1996).    Under  the  2006  version  of  the  PDES,  the  IMB  is  renamed  “the 
medical evaluation board.”  A medical board is normally composed of two medical officers, but may be composed 
on one medical officer under exceptional circumstances.  Chapter 3.C.1. of the PDES Manual (1996).   
 

with  various  pain  medications  and  physical  therapy.    The  IMB  noted  that  there  had  been  no 
improvement  in  the  applicant’s  condition;  that  the  applicant  was  unable  to  stand  or  walk  for 
prolonged periods; and that currently she was doing only desk work.  The IMB confirmed the 
diagnosis and stated that due to the “chronicity of [the applicant’s] condition, it is highly unlikely 
she will ever return to full duty and that the prospect of her ever being world-wide qualified was 
remote.”  The IMB stated that no other conditions were noted on a 2005 physical examination 
and referred the case to the Coast Guard Personnel Command. 
 
 
The applicant filed an extensive rebuttal to the IMB in which she noted that she suffered 
from  sea  sickness  and  low  back  pain  in  addition  to  her  foot  condition.    She  also  noted  that 
surgery on her feet was  scheduled for January 7, 2007.  She asked that the  Informal Physical 
Evaluation Board (IPEB)  5  ensure that “(1) the findings and recommendations of the IMB were 
just,  equitable,  consistent  with  the  facts,  and  in  keeping  with  the  provisions  of  law  and 
regulation, and (2) that due consideration be given to the facts . . .”   She asked to be retained on 
active  duty  until  her  medical  condition  was  sufficiently  clear  to  make  a  fitness  for  duty 
determination.   
 
 
On April 2, 2007, the applicant’s commanding officer (CO) agreed that the applicant was 
unfit for duty and should be separated from the Coast Guard.  The CO noted that the applicant 
was a seaman (SN) and that duties normally associated with a seaman include performing tasks 
such as routine cleanups, standing watches, and learning basic boat crew seamanship.  Due to her 
limited duty status, the applicant was exempted from performing those duties.  The CO noted 
that  the  applicant  refused  to  perform  duties  assigned  to  accommodate  her  limited  duty  status, 
such  as  shining  brass,  studying  for  her  advancement,  or  making  local  arrangements  to 
appointments.   
 
 
On January 7, 2007, the applicant underwent surgery on both feet for plantar fasciitis.  On 
February 27, 2007, an addendum to the medical board noted that the applicant complained of 
bilateral  foot  pain  and  was  using  a  wheelchair  because  she  was  unsteady  on  her  feet.    The 
Addendum noted that a  neurological consultation had been  requested to assess the applicant’s 
back pain, leg weakness and instability.   
 

A second addendum to the IMB noted that the applicant’s neurology evaluation on March 
8, 2007 was normal except for “vibration, mild decrease in both great toes.”  The report stated 
that on or about April 11, 2007, the applicant’s father indicated that the applicant had taken an 
overdose  of  pills  in  a  suicide  attempt.  The  applicant  was  medically  evaluated  and  it  was 
determined that she had engaged in a suicide attempt.  The applicant was admitted to a mental 
facility  for  treatment.    The  IMB  noted  that  the  diagnosis  of  Chronic  Bilateral  Foot  Pain 
Secondary to Plantar Fasciitis is correct and 
 

[the applicant] has been appropriately treated for this including physical therapy 
since Jan 19, 2007, without any improvement at all.  An etiology to the back and 
leg pain and weakness can’t be determined; neurologic work up to now has been 
essentially negative.  It is also correct that she had a suicide attempt and an initial 

                                                 
5 An IPEB is a standing administrative board that evaluates medical evaluation board reports and the fitness for duty 
of individuals on the TDRL.  Chapter 2.A.25. of the PDES Manual (2006).   

diagnosis  of  depression  NOS  was  given  by  the  admitting  mental  facility.    Her 
prognosis for continued military life is very poor.  Still pending are the Cognitive 
Studies and the final impression from the neurologist . . .   

 
 
A  cognitive  and  physical  deficits  evaluation  indicated  that  the  applicant  had  severe 
cognitive  dysfunction  across  the  Board.    The  report  recommended  that  the  applicant  receive 
psychotherapeutic  treatment  of  her  somatization  disorder.6    Successful  treatment  in  this  area 
should lead to improved functioning.  The report stated that the applicant was unfit for full duty. 
 

The  applicant  was  hospitalized  from  April  11,  2007  to  April  19,  2007  because  she 
overdosed on 6 to 8 tramdol pills and stated that “everyone is against me at the base!”  During 
this  hospitalization,  the  applicant  was  diagnosed  with  a  mood  disorder  NOS  (not  otherwise 
specified), a personality disorder NOS, and a 38 on the Global Assessment of Functioning scale 
upon admission. The 38 score indicated that the applicant was having “[s]some impairment in 
reality testing or communication OR major impairment in several areas, such as work or school, 
family relations, judgment thinking, or mood.”  Upon discharge her GAF score was 60, which 
indicated  that  she  had  moderate  symptoms  OR  moderate  difficulty  in  social,  occupational,  or 
school functioning. “   

 
The applicant was hospitalized again  from April 36 to May 1, 2007 because “I  am 19 
years old and I cannot do what other people do.’  “I just don’t care”  “Everyone at the Coast 
Guard  yells at me and tells me what to do.”  The applicant’s mental status on admission was 
described as being alert, fully intact, and that she looked her age, was dressed appropriately, and 
was pleasant and cooperative.  Her psychomotor behavior was retarded and her speech average.  
Her  emotional  state  was  euthymic,  mild  irritability,  and  sad.    Her  mood  was  described  as 
depressed and irritable.  Her processing capability was described as average and her thought was 
absent psychotic features.  Her anxiety was described as absent.  Upon admission to the hospital, 
she had a GAF of 50 that indicated that she had “serious symptoms OR any serious impairment 
in social, occupational, or school functioning.  Upon discharge, her GAF score was 62.   
 
 
A third addendum to the IMB was prepared on May 11, 2007.  It noted that the applicant 
had  another  hospitalization  for  depression  from  April  26,  2007  to  May  1,  2007.    She  was 
admitted to the hospital because she was “not able to cope with the demands at ISC Boston.”  
The third addendum also stated the following: 
 

After  being  discharged  from  the  hospital  for  her  suicide  attempt  she  was  not 
working at all but going to her appointments in the partial hospitalization program 
from 0900 to 1400 daily.  The Colexa was increased to 20 mg daily.  The social 
worker from the psychiatric hospital recommended that she . . . go home on leave 
on 1 May 2007.    On May 9, 2007, the cognitive test report was received . . . It is 
Dr. [P’s] impression that [the applicant] has a somatoform disorder and that she is 
unfit  for  full  duty.    She  recommended  psychotherapeutic  treatment  for  this 
disorder.    

                                                 
6 Somatization disorder is a polysymptomatic disorder that begins before age 30, extends over a period of years, and 
is characterized by a combination of pain, gastrointestinal, sexual, and pseudoneurological symptoms.   Diagnostic 
and Statistical Manual Disorders (DSM-IV-TR), Fourth Edition, p. 485.   

 
It is the impression of the [IMB] that the diagnosis of: 
 
1) Chronic Bilateral Plantar Fasciitis . . . 
2) Somataform Disorder . . . 
3) Depressive disorder NOS . . .  
4) Personality Disorder, NOS . . . 
 
are correct and that [the applicant] is not fit for full duty physically or mentally.  
The  prognosis  for  this  patient  for  military  service  is  poor. 
  It  is  the 
recommendation  of  the  Board  that  [the  applicant]  be  referred  to  CPEB  for 
adjudication.   

   

The applicant had a third hospitalization from May 22, 2007 to May 31, 2007 due to a 
borderline psychosis “seeing knives + HI towards peers at Coast Guard barracks.”  The reports 
stated that the applicant believed that she was a target, that she was disciplined without cause, 
and  that  she  was  harassed.   The  applicant’s  thought  content  was  described  as  being  absent  of 
psychotic features, absent of anxiety, but with a depressed mood.  She had thoughts about death 
and a loss of interests.  She had a low level of energy and poor concentration. Upon discharge, 
she was diagnosed with depressive disorder, NOS, personality disorder, plantar fasciitis, chronic 
back pain, and chronic knee pain.  She had a GAF of 35 on admission and a score of 60 upon 
discharge.   
 
 
The IPEB met on May 30, 2007 and recommended that the applicant be separated from 
the Coast Guard with a 10% disability rating for Undifferentiated Somatoform Disorder under 
VASRD  code  9423.   The  10%  rating  under  this  code  indicates  that  the  applicant’s  symptoms 
were of occupational and social impairment due to mild or transient symptoms which decrease 
work  efficiency  and  ability  to  perform  occupational  tasks  only  during  periods  of  significant 
stress.   
 

The applicant had a fourth hospitalization from June 4, 2007 to June 8, 2007 because she 
stated she had “thoughts of harming others at Coast Guard.”  Upon discharge  from the hospital, 
her  condition  was  described  as  “denies  thoughts  of  harming  others  or  self,  alert  ox  3,  mood-
euthymic affect-congruent with mood-bright, no psychomotor agitation/or retardation, no s/sx of 
psychosis, no [active] hallucinations, no aggressive behaviors, + focus + concentration +interest 
+ motivation, sleep good and appetite good.”  She was diagnosed with psychotic disorder NOS, 
recurrent unspecified major depressive disorder, and somatoform disorder NOS.  She was also 
diagnosed  with  a  personality  disorder  NOS,  and  plantar  fasciitis.   The  applicant  was  noted  to 
have problems with her primary support group, problems with her social environment, problems 
with her occupation and housing.  Her GAF on admission was 40 but upon discharge it was 60.  
 

On June 22, 2007, the applicant underwent  a comprehensive mental health assessment 
with Dr. E.  He diagnosed her with undifferentiated somatoform disorder, depressive disorder, 
personality  disorder,  chronic  pain  and  chronic  bilateral  plantar  fasciitis,  conflict  with  chain  of 
command,  and  a  GAF  score  of  50.    He  stated  that  her  lower  extremity  pain  could  not  be 
explained by any clear organic etiology, but that her level of disability due to the level of pain 

was extreme.  He stated that she “had chronic sleep difficulties, severe fatigue, and episodes of 
crying  spells  and  amotivation  that  were  noted  in  her  medical  record.    He  stated  that  “[i]t  is 
unclear whether her presentation is colored by conscious or unconscious secondary gain and that 
she  had  significant  distrust  of  the  medical  system,  which  .  .  .  may  significantly  color  her 
presentation  of  the  symptoms.”   With  regard  to  her  mental  examination,  Dr.  E  wrote  that  her 
psychomotor  activity  was  mildly  retarded.    Her  hygiene  and  grooming  were  intact  and  her 
clothing was appropriate.  He described her affect as somewhat restricted and mildly irritated.  
He stated that her speech was somewhat quiet and mildly slowed, but otherwise normal.  Her 
thought  process  was  linear,  logical,  and  goal  directed.    She  denied  any  suicidal  or  homicidal 
thoughts and there were no apparent delusions and perceptual alterations.    He wrote that the 
applicant did not appear to be responding to internal stimuli and there was no evidence of any 
formal thought disorder.  Her attention was good.  “Her impulse control appears on admission to 
be poor in the sense that she fears she might behave violently if she was confronted by one of the 
individuals with whom she is having problems in the Coast Guard.”  Her insight and judgment 
were poor.  He stated that the applicant should continue her therapy with a LCSW.   

 
On  July  11,  2007,  the  applicant  rejected  the  IPEB  recommendation  and  demanded  a 
formal  hearing  before  the  FPEB.    In  a  petition  to  CGPC,  prior  to  the  FPEB  hearing,  the 
applicant’s attorney submitted his outline of the case and asked that the applicant be found unfit 
for duty and placed on the TDRL or PDRL.  He recommended a 50% rating for major depressive 
disorder/conversion  disorder/post  traumatic  disorder  under VASRD  code  9434/9424/9411,  and 
0%  rating  for  Plantar  Fasciitis  under  VASRD  code  5399/5210.    He  requested  a  combined 
disability rating of 50%.  In his petition to CGPC, he noted that: 

 
1.   The applicant had had four hospitalizations for mental health problems; 

2.  The  applicant  had  a  comprehensive  mental  health  assessment  from  June  29,  2007-
July  6,  2007,  in  which  the  primary  diagnosis  was  a  depressive  disorder,  NOS  and 
undifferentiated  somatoform  disorder.   The  applicant’s  GAF  assessment  was  at  50, 
thereby showing serious impairment in occupational and social settings, and that the 
therapist recommended an increase in the dosage in her medication.  

 

  

3.  That  a  LCSW  stated  in  a  report  dated  September  22,  2007,  that  the  applicant  was 
suffering  from  post-traumatic  stress  disorder  (PTSD)  secondary  to  her  recent 
hospitalizations  and  her  perception  of  how  others  in  the  Coast  Guard  viewed  her.   
The LCSW agreed that the applicant suffered from a number of somatic complaints 
that the LCSW felt met the criteria for a conversion disorder vice an undifferentiated 
somatoform disorder.  The LCSW stated that the applicant’s somatic complaints and 
depressive symptoms should abate in whole or in part once her suicidal ideation and 
symptoms of anxiety have resolved.  The LCSW concluded that the applicant’s then-
current degree of impairment in occupational and social settings was profound. She 
stated that the applicant could not live independently at that time.  

 
The FPEB, a superior board to the IPEB, met on September 27, 2007.  At this hearing the 
 
applicant was represented by her attorney.    The FBEB  found that the  applicant was unfit for 
continued duty because of a major depressive disorder, with “occupational and social impairment 

with  occasional  decrease  in  work  efficiency  and  intermittent  periods  of  inability  to  perform 
occupational task.”  The FPEB rated this disability as 30% disabling under VSRD code 9434.  In 
an amplifying statement the FPEB described the criteria for VSRD code 9434 as follows: 
 

Major Depressive 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 conversation normal), due to such symptoms; depressed 
mood, anxiety, suspiciousness, panic attacks (weekly or less often) chronic sleep 
impairment,  mild  memory  loss  (such  as  forgetting  names,  directions,  recent 
events) rated at 30%. 

 
  
The FPEB also found the applicant’s plantar fasciitis disabling and rated it at 0% under 
VSRD code 5399-5310.  The FPEB recommended that the applicant be permanently retired from 
the Coast Guard with a total disability rating of 30%.   
 
 
On the advice of her attorney, the applicant accepted the findings and recommendations 
of the FPEB on October 15, 2007.  CGPC approved the findings and recommendations of the 
FPEB.  The applicant retired on January 21, 2008 due to physical disability with a 30% disability 
rating.   
 
DVA Claim 
 
 
The applicant’s attorney filed a claim on her behalf with the DVA on April 12, 2008, in 
which  he  requested  a  minimum  combined  DVA  rating  of  80%.    He  argued  that  the  applicant 
should have a 70% DVA rating for major depressive disorder/conversion disorder/post-traumatic 
stress  disorder,  20%  DVA  rating  for  plantar  fasciitis,  and  a  10%  DVA  rating  for  lumbosacral 
strain. In making his request to the DVA, the attorney cited the same medical evidence that was 
considered by the FPEB in making its findings and recommendations.   
 
 
On  May  15,  2008,  the  applicant  underwent  a  DVA  medical  examination.    The  DVA 
psychiatrist diagnosed her with major depressive disorder, recurrent severe with atypical features 
and PTSD chronic severe.  Her GAF was at 35.   
 

With regard to her depression, the DVA psychiatric report noted that the applicant was 

experiencing the following symptoms and functional impairment: 
 

Depressed  mood,  anxiety,  suspiciousness,  chronic  sleep  impairment,  flattened 
affect, impairment of short-term memory, disturbances or motivational and mood, 
difficulty in established and maintaining effective work and social relationships, 
suicidal  ideation,  near  continuous  depression  affecting  the  ability  to  function 
independently,  appropriately  and  effectively,  difficulty  maintaining  personal 
appearance and hygiene, difficulty adapting to stressful circumstances.     

 
 
The DVA psychiatric report stated that the applicant met the criteria for PTSD.  In this 
regard, the psychiatrist stated that the applicant reported that she was harassed by her superiors 

during her time in the Coast Guard and that she was fearful because a friend was raped in the 
barracks.  The psychiatric report stated that as a result of the alleged harassment, the applicant 
suffers vivid nightmare 3 to 4 times per week and that she has flashbacks.   
 
 
The DVA also diagnosed the applicant with plantar fasciitis, chronic pain in knees, hip 
and back.  With regard to the applicant’s foot condition, the physical examination revealed that 
there was mild tenderness to palpation on the plantar aspect of both feet.  The medical report 
stated that the applicant’s active and passive range of motion for inversion was 30 degrees for the 
right foot and 0 to 30 degrees for the left foot.  Eversion for the right foot was 0 to 20 degrees 
and  the  same  for  the  left  foot.    She  had  no  pain  with  inversion  or  eversion.    The  physician 
diagnosed bilateral plantar fasciitis, mildly active in both feet at the time of examination.   
 
 
With  regard  to  the  applicant’s  lumbar  spine,  the  DVA  examination  revealed  that  the 
applicant experienced mild pain on range of motion of the lumbar spine with forward flexion 70 
to 80 degrees, lateral flexion to the right to 30 degrees, to the left 20 to 30 degrees, and extension 
20 to 30 degrees.  She did not experience pain with rotation to the left or to the right.  The report 
noted that based on objective findings, the applicant had no tenderness or spasms in the lumbar 
spine and there was no weakness in either lower extremity.  Nor was there any muscle atrophy or 
loss  of  muscle  tone  in  the  lower  extremities.    The  applicant’s  motor  strength  was  equal  and 
symmetrical in both lower extremities.  There was no sensory deficit to light touch and reflexes 
are equal and symmetrical in both lower extremities.  The report noted that the applicant had had 
no  incapacitating  episodes  during  the  past  12  months.    She  was  diagnosed  with  lumbosacral 
strain, mildly active at the time of the examination.   
 

VIEWS OF THE COAST GUARD 

 
 
On March 30, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny relief in accordance with a recommendation 
from the Commander, Personnel Service Center (PSC). 
 
 
PSC stated that the applicant received due process throughout the Coast Guard’s PDES 
process and that the applicant has the burden of proving the existence of an error or injustice by a 
preponderance of the evidence.  PSC stated that the applicant, through her counsel, does not call 
into  question  any  error  or  injustice  experienced  with  respect  to  her  discharge.    Rather,  her 
counsel asserts that now, after-the-fact and in retrospect, the applicant should have protested the 
findings and elected to exercise further administrative review of the PEB findings.  PSC stated 
that the applicant’s counsel freely admits that he advised the applicant to accept the findings of 
the FPEB without contention based on the optimistic belief that such an acceptance would lessen 
the stressors in her life,  which has proven not to be the case.  Therefore, he believes that the 
FPEB findings should be set aside.   
 
 
PSC  argued  that  the  applicant’s  current  physical  condition  is  beyond  the  scope  of  the 
Coast  Guard’s  original  cause  for  discharge  and  does  not  negate  the  fact  that  the  applicant 
received a full and fair hearing—a point not contested by the applicant’s counsel.  PSC stated 
that  the  appropriate  avenue  for  relief  was  completed  by  her  request  for  service-connected 
compensation through the DVA. 

 

 

 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 5, 2011, the Board received the applicant’s response to the views of the Coast 
Guard.  The applicant submitted documentation showing that she had elected to be represented 
by her father instead of the attorney.  Her representative made the following arguments: 
 
1.  That the Coast Guard accepted a medical board report signed by one officer instead of two as 
required  by  the  PDES  Manual.  He  stated  that  the  medical  board  was  signed  after  the 
applicant filed a formal complaint under Title VII of the Civil Rights Act.   He also argued 
that the MB failed to conduct a thorough examination and review all available evidence.   
 

2.   That  the  original  IPEB  failed  to  facilitate  a  mental  examination  prior  to  or  subsequent  to 
concluding that the applicant had physical impairments, despite having full knowledge of the 
stressor’s suffered by the applicant prior to surgery.  

 
3.  That the IPEB and the FPEB overlooked the diagnostic findings of the civilian psychiatric 
hospital and the LCSW, who provided the major treatment to the applicant.  In this regard, he 
noted the applicant’s GAF scores from these treatments.   
 

4.  That  the  FPEB  erred  by  not  considering  all  medical  and  mental  health  records  prior  to 
arriving at a disability percentage decision.  The applicant argued that based on a complete 
review  of  clinical  reports,  applicant’s  major  depressive  disorder  is  recurrent  with 
considerable  social  and  industrial  adaptability  impairment.  The  minimum  rating  for  this 
condition under VASRD 9434 is 50%.    

5.   That insufficient evidence existed to support FPEB findings.  The applicant suggested that 
the  FPEB  did  not  award  a  disability  rating  for  somatoform  disorder  because  it  would  be 
considered as pyramiding with the 30% major depressive disorder.  

6.   That the FPEB altered its final disability findings and refused to provide the applicant with a 

copy of the transcript.   

7.  That the Coast Guard failed to disclose to applicant and or failed to eliminate the conflict of 
interest  between  the  applicant’s  former  lawyer  and  the  lawyer’s  ex-wife  who  was  directly 
involved in the FPEB.   

The applicant asked that the Board grant her a 100% disability rating for major depressive 
disorder with post traumatic stress disorder, 10% for lumbosacral strain, 10% for left foot plantar 
fasciitis, and 10% for right foot plantar fasciitis.   
 

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 submission and applicable 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.    The  Board  finds  that  the  applicant  and  her  attorney  made  a  strategic  decision  to 
accept the FPEB’s recommendation and finding that she be permanently retired from the Coast 
Guard  with  a  30%  disability  rating,  with  full  knowledge  of  the  PDES  procedures  and  the 
ramifications of that decision.    
 
 
3.  In this regard, although the applicant’s attorney argued for a 50% disability rating for 
 
the 
applicant’s  mental  disability  under  VASRD 
(major 
depression/conversion  disorder/post-traumatic  stress  disorder)  and  a  0%  disability  rating  for 
plantar  fasciitis  before  the  FPEB,  he  admitted  that  he  counseled  the  applicant  to  accept  the 
FPEB’s recommended  permanent retirement with a  30% disability  rating under VASRD code 
9434  because,  once  approved,  her  permanent  retirement  and  rating  would  never  be  subject  to 
modification.  Whereas if the applicant had contested the FPEB’s recommendation and finding, 
her  PDES  case  would  have  been  subject  to  further  review  and  processing  and  to  possible 
modification by the Physical Review Council (PRC), a higher level physical evaluation board.   
 
 
4.  Under Article 5.D.2.c. of the PDES Manual, if the applicant had filed a rebuttal to the 
FPEB, her case would have been forwarded to the PRC,   where the PRC could have found that 
the  FPEB  assigned  the  incorrect  VASRD  code(s),  pyramided  impairments,  assigned  an 
erroneous  percentage  of  disability,  or  did  not  support  its  findings  and  recommendations  with 
sufficient evidence.  Upon a finding of either, the PRC could have returned the applicant’s case 
to the FPEB president for reconsideration and remedial action, or it could have referred her case 
to a three-member PRC panel for consideration and disposition, in which substitute findings and 
recommendations  could  have  been  made.    Therefore,  the  applicant  and  her  attorney  made  a 
conscious  and  knowing  decision  to  accept  the  FPEB’s  findings  and  recommendations,  even 
though the rating was less than they had requested, because they did not want to risk losing the 
FPEB’s  recommendation  for  permanent  retirement  with  a  30%  disability  rating,  which  is  the 
minimum rating required for retirement. The applicant’s decision to do so is not proof that the 
Coast  Guard  committed  any  error  in  processing  the  applicant’s  PDES  case,  and  in  fact,  her 
attorney makes no allegations of error in that process.  Further, the applicant voluntarily agreed 
to accept the FPEB findings on the advice of her counsel.   
 
 
5. Even if the applicant had not agreed with the FPEB and had not waived any further 
PDES processing, the Board would still find that the applicant has failed to prove that the Coast 
Guard committed an error or injustice in awarding her a 30% disability rating.  The Board is not 
persuaded by the applicant’s attorney’s argument that she should have the higher DVA ratings 
because  those  rating  show  that  he  was  too  optimistic  in  his  analysis  that  her  condition  would 
improve.  The  applicant  had  been  discharged  for  approximately  4  months  when  she  was 
examined by DVA doctors and almost 8 months had elapsed since her FPEB hearing.  As her 
attorney suggested, her condition worsened after her discharge.  
 

codes  9434/9424/9411 

6.  Additionally, the Board notes that even though the DVA granted the applicant a 100% 
disability  rating  under  VASRD  code  9411-9434  for  major  depressive  Disorder/PTSD;  a  10% 
rating for lumbosacral strain under code 5237; a 10% rating for plantar fasciitis, left foot under 

code 5278-5384; and a 10% rating for plantar fasciitis right foot, neither the DVA rating decision 
nor  the  DVA  medical  report  state  to  what  extent  the  applicant’s  mental  and  foot  disabilities 
interfered  with  her  ability  to  perform  her  duties  as  a  seaman  or  even  whether  this  issue  was 
considered.   Nor do they address whether her lumbar strain caused her to be unfit to perform her 
duties  as  a  seaman.    Rather,  the  DVA  reports  address  whether  her  conditions  were  service-
connected disabilities and the impact the disabilities have on her civilian earning capacity.  A 
service-connected  disability  is  not  necessarily  the  same  as  having  an  unfitting  condition  that 
renders  a member unable to perform the duties  of his or her office, grade, or rate. A service-
connected disability means that a condition was incurred or aggravated in the line duty while in 
the military.    

 
 Chapter 2.A.35 of the PDES Manual defines not fit for duty7 as “the status of a member 
who is determined by the final approving authority within the PDES to be unable to perform the 
essential duties of the member’s office, grade, rank, or rating.”  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  member  concerned  to  the  requirements  and  duties  that  a  member 
may reasonably be expected to perform in his or her office, grade, rank, or rating.  The FPEB is 
entitled  to  the  presumption  that  it  applied  this  standard  in  reaching  its  recommendations  and 
findings in the absence of evidence to the contrary.   

 
7.    Therefore, although the DVA granted the applicant disability ratings for certain other 
conditions that the FPEB did not find disabling and granted a higher rating than the FPEB did for 
her mental illnesses and plantar fasciitis, this Board has consistently held that a higher disability 
rating from the DVA does not, in and of itself, establish that the Coast Guard committed an error 
or injustice because it gave a lower disability rating than the DVA.  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."   
 
 
8.  The Board notes that in rating her disabilities, the DVA substantially relied upon its 
own  doctors’  evaluations  of  the  applicant’s  condition  approximately  4  months  after  her 
discharge.  Likewise, the Coast Guard in rating the applicant’s disabilities reached its decisions 
based upon the medical evidence of record and the recommendation and finding of the FPEB 
after a hearing in which the applicant was represented by counsel.  The Board finds that based 
upon its review of the medical evidence available to the FPEB and taking into consideration the 
applicant’s  duties  as  a  seaman  that,  according  to  the  CO,  included  routine  cleanups,  standing 
                                                 
7 In this revision of the 2006 PDES Manual, the Coast Guard replaced “unfit for duty” with “not fit for duty,” but 
continued to use the tern unfit in other provisions of the Manual.    

watches,  and  learning  basic  boat  crew  seamanship,  the  Coast  Guard’s  rating  of  her  unfitting 
conditions (30% mental plus 0% feet) as being 30% disabling was appropriate.   
 
 
9.    A  100%  disability  rating  for  her  mental  illness  under  the  VASRD  would  not  have 
been an appropriate finding by the FPEB because there was insufficient medical evidence that 
the  applicant  had  total  occupational  and  social  impairment,  gross  impairment  in  thought 
processes or communication, persistent delusions or hallucinations, persistent danger of hurting 
self or others, no disorientation to time or place, or memory loss for names of close relatives, 
own occupation, or own name. (Emphasis added.)  The applicant’s attorney essentially admitted 
this  by  asking  only  for  a  50%  disability  rating  before  the  FPEB.    The  applicant’s  last  mental 
assessment before the FPEB by a physician, Dr. E, noted that the applicant experienced chronic 
sleep impairment, severe fatigue, crying spells and amotivation and that her insight, judgment 
and impulse control were poor and her psychomotor activity was mildly retarded.  His evaluation 
of the applicant’s condition did not appear nearly as severe as that described for a 100% DVA 
rating  under  the  VASRD.    Additionally,  earlier  upon  her  discharge  from  her  fourth  and  last 
hospitalization prior to the FPEB, the applicant’s condition was described as:    “denies thoughts 
of  harming  others  or  self,  alert  ox  3,  mood-euthymic  affect-congruent  with  mood-bright,  no 
psychomotor agitation/or retardation, no s/sx of psychosis, no av hallucinations, no aggressive 
behaviors,  +  focus  +  concentration  +interest  +  motivation,  sleep  good  and  appetite  good.”   
These last two Coast Guard evaluations persuade the Board that the Coast Guard’s rating was not 
inconsistent  with  that  for  a  30%  rating  under  the  VASRD  for  rating  mental  disabilities.    The 
criteria  for  which  are  as  follows:    “Major  Depressive  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  conversation  normal),  due  to  such  symptoms;  depressed  mood,  anxiety, 
suspiciousness, panic attacks (weekly or less often) chronic sleep impairment, mild memory loss 
(such as forgetting names, directions, recent events).” 
 
 
10. With regard to the DVA ratings of 10% for plantar fasciitis in each foot and 10% for 
lumbar strain, the Board finds that the applicant had the opportunity to argue these issues before 
the  FPEB.   Apparently,  the  FPEB  found  the  plantar  fasciitis  to  be  0%  disabling  and  that  her 
lumbar  strain/pain  was  not  unfitting  for  duty.    The  evidence  does  not  persuade  the  Board 
otherwise.  
  

11. The applicant’s father replaced the applicant’s attorney in the middle of the BCMR 
process.  The Board notes that in his response to the advisory opinion, he made allegations of 
procedural  and  substantive  errors  in  the  PDES  process.    However,  the  Board  finds  that  the 
applicant’s attorney did not make any such objections in his submission to the Board.  Therefore, 
the Board is satisfied that the Coast Guard complied with the procedural and substantive rules in 
processing the applicant’s case under the PDES, and if it did not the applicant waived them by 
not objecting at the time of her hearing.   Also, the applicant failed to provide sufficient evidence 
to support her contention that a potential conflict of interest existed between her then-attorney 
and his ex-wife who was allegedly involved in the applicant’s FPEB.   

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

 

The  application  of  XXXXXXXXXXXXXXXXXXXX  for  correction  of  her  military 

ORDER 

 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna A. Lewis 

 

 

 
 
 Paul B. Oman 

 

 
 
 Darren S. Wall