DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-143 
 
Xxxxxxxxxxxxxxxxxxxx 
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FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case  after receiving  the  applicant’s 
application  form  on  January  28,  2011,  which  was  completed  upon  receipt  of  her  military  and 
medical records on March 25, 2011.  The Chair assigned the case to staff member J. Andrews to 
prepare the decision for the Board 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  February  23,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a retired boatswain’s mate, first class (BM1/E-6), was processed under the 
Coast  Guard’s  Physical  Disability  Evaluation  System  (PDES)  and  medically  retired  from  the 
Coast Guard on June 1, 2007, with a 60% combined disability rating for a pain disorder; incom-
plete, mild paralysis of the sciatic nerve; and thoracolumbar strain.  She asked the Board to cor-
rect her Coast Guard record to show that she was retired with a 100% disability rating.   
 

The applicant alleged that her application is timely filed, even though she was retired  in 
2007, because her total  disability was not made clear to her until she was evaluated by doctors 
for the Department of Veterans’ Affairs (DVA) and received the DVA’s rating decision award-
ing her a 100% disability rating on February 13, 2008.  The DVA found her 100% disabled due 
to  unemployability,  and  this  rating  was  made  retroactive  to  her  date  of  retirement  from  active 
duty.    The  applicant  alleged  that  this  100%  rating  from  the  DVA,  her  medical  records,  and  a 
doctor’s  statement  that  her  chronic  widespread  pain  is  unlikely  to  improve,  which  are  summa-
rized below, prove that the Coast Guard erred when it assigned her only a 60%  permanent dis-
ability rating.   
 
The  applicant  alleged,  in  particular,  that  the  Coast  Guard  failed  to  properly  assess  her 
 
degree of “impairment secondary to mood/pain disorders,” intervertebral disc syndrome (IDS) of 
the  thoracolumbar  spine,  and  IDS  of  the  cervical  spine.    The  applicant  stated  that  whereas  the 

 

 

Coast Guard assigned her a 30% disability rating for pain disorder, a 20% rating for incomplete 
paralysis of the sciatic nerve, and 20% rating for thoracolumbar strain,  the DVA assigned her a 
50% disability  rating  for  major depressive disorder,  a 40% rating for  degenerative disc disease 
(DDD) of the thoracolumbar spine, and a 30% rating for DDD of the cervical spine.   
 

The  applicant  alleged  that  the  DVA’s  ratings  for  her  conditions  are  accurate  and  prove 
that the Coast Guard’s ratings are erroneous.  She alleged that her physical condition deteriorated 
after  she  was  examined  by  military  doctors  pursuant  to  her  PDES  processing  but  before  her 
retirement and that this deterioration was not reflected in the disability ratings she received from 
the  Coast  Guard.    In  particular,  she  alleged  that  the  measurement  of  her  forward  flexion  as  15 
degrees during her DVA examination shows that she should have received a 40% rating for IDS 
of the thoracolumbar spine from the Coast Guard.  She also alleged that the measurement of the 
forward flexion of her cervical spine as 10 degrees during her DVA examination shows that she 
met the requirements for a 30% rating for IDS in her cervical spine as well. 
 
 
The  applicant  argued  that  if  there  is  any  doubt  about  which  disability  ratings  should 
apply,  she  should  be  given  the  benefit  of  the  doubt  pursuant  to  38  U.S.C.  §  5107(b)  and  38 
C.F.R. § 4.3.  She noted that this doctrine has been enforced by the Court of Veterans Appeals.1 
 
 
The  applicant  argued  that  the  Board  should  revise  her  Coast  Guard  disability  ratings  to 
those assigned by the DVA for these conditions, which would give her an 80% combined disabil-
ity  rating.    Moreover,  the  Board  should  consider  awarding  her  a  100%  disability  rating  based 
upon individual unemployability. 
 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in May 1991, became a boatswain’s mate, and qualified as a boat 
coxswain.  On December 28, 2005, a Medical Board (MB) reported that the applicant had com-
plained of chronic low back pain without radiculopathy since January 2004, after she participated 
in  heavy  weather  surf  training.    On  January  21,  2004,  an  x-ray  revealed  mild  degenerative 
changes at L4-5 with a bone spur.  On January 29, 2004, an MRI showed minimal disc bulge at 
T12-L1, which was unlikely to be the cause of her pain due to its location, which she described 
as a dull constant ache in her right lower back with no radiation or burning.  Her gait was nor-
mal, and she had a normal range of motion and strength.  Results of a bone scan were negative. 
 

The MB reported that on May 21, 2004, the applicant was evaluated by  a pain manage-
ment  specialist,  who  gave  her  a  steroid  injection  in  her  sacroiliac  joint  and  prescribed  non-
steroidal  anti-inflammatory  drugs,  ice,  heat,  and  physical  therapy.    She  was  also  referred  for 
psychological and rheumatological evaluations.  Rheumatoid arthritis was ruled out.  Because the 
injection relieved her pain, from August 2004 through May 2005, a physician treated the appli-
cant for sacroiliac joint disorder, with steroid injections, and with various oral and topical medi-
cations.    During  this  time,  she  “had  several  episodes  of  acute  exacerbations  of  back  pain  …. 
Coincidently, her exacerbations tend to occur following her failed drills or failed requalification 
for a small boat coxswain.”  In April 2005, the applicant’s command sent her to a psychologist, 

                                                 
1 Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 

 

 

who diagnosed Somatization Disorder2 and recommended administrative separation.  The appli-
cant  disagreed  and  paid  for  a  second  opinion.    Dr.  R  diagnosed  her  with  mild  depression  and 
mild anxiety “with somatic expressions of numbness and tingling, wobbliness of legs, inability to 
relax, dizziness or light-headedness.” 

 
The  MB  reported  that  in  July  2005,  the  applicant  was  transferred  from  the  boat  station 
“due to  ongoing  low back pain  with  restricted duties and her inability to  re-qualify  for a small 
boat coxswain.”  She consulted an orthopedic surgeon and told him that her pain increased with 
stress,  cold  weather,  bending,  driving,  and  lifting  and  improved  with  heat,  rest,  exercise,  and 
swimming.  The orthopedic surgeon found that she had normal posture and gait, normal lumbar 
lordosis (curvature), no paraspinous muscle tenderness, no trigger points, and a normal range of 
motion.  An MRI conducted on August 4, 2005, showed no change since the MRI conducted in 
January  2004.    The  orthopedic  surgeon  recommended  that  she  continue  taking  Prednisone  and 
that she perform only desk work.  He found that she was not a candidate for surgery. 

 
The MB reported that the applicant continued to search for the etiology of her pain.  An 
MRI of both hips on November 8, 2005, was “unremarkable.”  Also in November 2005, a psy-
chologist diagnosed the applicant with “Pain Disorder associated with both psychological factor 
and a general medical condition” (DSM 307.89)3 and chronic low back pain. 

 
The MB concluded that the applicant might have to live with low back pain and that she 
was  not  expected  to  be  fit  for  overseas  or  sea  duty.    The  MB  stated  that  she  “will  continue  to 
seek medical attention relentlessly until she finds specialists who agree with her opinion regard-
ing her diagnosis and treatment.”  The Board unanimously recommended that she be retired due 
to  disability.    Therefore,  her  records  were  referred  to  a  Central  Physical  Evaluation  Board 
(CPEB) for evaluation. 

 
On January 9, 2006, the applicant’s commanding officer endorsed the MB report, stating 
that  the  applicant  could  no  longer  perform  as  a  boat  coxswain  and  had  been  reassigned  to 
administrative work. 
 

                                                 
2  “Somatization  Disorder”  is  a  pattern  of  recurring,  multiple  physical  symptoms,  such  as  pain,  numbness,  and 
weakness,  that  suggest  a  general  medical  condition  and  are  not  fully  explained  by  the  person’s  apparent  physical 
condition,  by  another  mental  disorder,  or  by  a  substance.    The  symptoms  are  not  feigned  and  cause  clinically 
significant distress or impairment in social or occupational functioning.  Pain must be related to at least four sites or 
functions  and  there  must  be  a  history  of  at  least  two  gastrointestinal  complaints  and  one  sexual  or  reproductive 
complaint.    The  complaints  must  begin  before  age  30.  American  Psychiatric  Association,  DIAGNOSTIC  AND 
STATISTICAL MANUAL  OF  MENTAL  DISORDERS, FOURTH EDITION, TEXT REVISION (2000) (DSM-IV-TR), p. 486 et 
seq.  The Coast Guard relies on the DSM when diagnosing psychiatric conditions. See Coast Guard Medical Manual 
(COMDTINST M6000.1B), Chap. 5.B.1.   
3 “Pain Disorder associated  with both psychological  factors and a general  medical condition” is pain that suggests 
the existence of a general medical condition but is not fully explained by the person’s apparent medical condition, 
by another mental disorder, or by a substance.  The pain “is the predominant focus of the clinical presentation and is 
of sufficient severity to  warrant clinical attention … . The pain causes significant distress or impairment in social, 
occupational, or other important areas of functioning … .  Psychological factors are judged to play a significant role 
in  the  onset,  severity,  exacerbation,  or  maintenance  of  the  pain  …  .    The  pain  is  not  intentionally  produced  or 
feigned as in Factitious Disorder or Malingering … . Pain Disorder is not diagnosed if the pain is better accounted 
for by a Mood, Anxiety, or Psychotic Disorder …”  DSM-IV-TR, p. 498 et seq.    

 

 

On February 16, 2006, the CPEB reviewed the applicant’s records and recommended that 
 
she  be  permanently  retired  with  a  40%  combined  disability  rating  based  on  the  following  two 
separate ratings: 
 

  30% for Pain Disorder (code 9422 in the Veterans’ Affairs Schedule for Rating Disabili-
ties (VASRD)) for “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, panic attacks, chronic sleep 
impairment, mild memory loss (such as forgetting names, recent events, directions).” 

 

 

  10% for IDS “rated as arthritis degenerative based on painful motion.” 

On May 6, 2006, after consulting counsel, the applicant rejected the CPEB’s recommen-

dation and demanded a formal hearing before the Formal Physical Evaluation Board (FPEB). 
 

On  June  20,  2006,  the  applicant’s  attorney  submitted  to  the  FPEB  a  response  to  the 
CPEB’s recommendation.  He argued that the applicant should receive a combined 60% disabil-
ity rating based on the following individual ratings and conditions: 
 

  30%  for  Pain  Disorder  (9422)  –  The  attorney  stated  that  he  would  not  argue  with  this 
rating, which was assigned by the CPEB.  However, he noted that a doctor who evaluated 
the applicant on July 29, 2005, reported that her GAF was 49, which, he argued, would 
normally  warrant  a  50%  rating  under  the  criteria  for  mental  disorders.    The  attorney 
admitted  that  the  applicant’s  overall  work  and  social  situation  had  improved  since  that 
doctor had evaluated the applicant in July 2005.   

  19% rounded to 20% for bilateral, mild incomplete paralysis of the sciatic nerve (8520) – 
The attorney argued that the recent nerve conduction studies revealed mild left  L5 radi-
culopathy and mild left and right S1 radiculopathy with nerve responses consistent with 
L5 and S1 root innervations.  He argued that the condition warranted a separate disability 
rating because it adversely affected the applicant’s ability to kneel, squat, crawl, work in 
confined  spaces,  run,  stand,  or  walk  for  extended  periods.    He  argued  that  because  the 
nerve  conduction  studies  corroborated  the  applicant’s  symptoms  of  parathesias  (numb-
ness) in her lower extremities, she should receive a 20% rating for this bilateral condition. 

  10% for thoracolumbar strain (5237) – The attorney noted that radiographic studies and 
MRIs had shown mild degenerative changes at L4-5, DDD with desiccation and bulging 
at T12-L1, and disc bulging at T6-7 and T7-8, and that a range of motion study conducted 
on March 7, 2006, showed that the applicant’s forward flexion was limited to 60 degrees.  
He stated that this limitation merits assignment of a 20% rating under VASRD code 5237 
but  admitted that the applicant’s combined range of motion  fell within the criteria for a 
10% rating.  He noted that the condition had not responded to treatment and argued that it 
warranted  a  separate  rating  because  it  adversely  affected  the  applicant’s  ability  to  lift, 
carry, bend, reach, or pull without pain.  
 

 

 

 

 

 

  20% for thoracic outlet syndrome (analogous to 8599/8513) – The attorney noted that the 
applicant  had  complained  of  numbness,  pain,  and  weakness  in  her  upper  left  extremity 
for a couple of years and that testing on September 27, 2005, indicated possible diagnoses 
of  Compression  Thoracic  Outlet  Syndrome  and  Hyperabduction  Thoracic  Outlet  Syn-
drome.  The attorney stated that although he raised this issue in rebuttal  to the IMB, no 
further action had been taken to rule out these diagnoses.  He argued that the applicant’s 
condition  warranted  at  least  a  20%  rating  under  these  codes  because  her  ability  to  lift, 
carry,  pull,  fire  a  weapon,  drive  a  vehicle,  and  perform  repetitive  hand  motions  was 
adversely affected.   

In July 2006, the FPEB referred the applicant to a Disposition Medical Board (DMB) to 
undergo thoracolumbar range of motion testing, psychiatric examination, an MRI of the cervical 
spine, and evaluation for possible Thoracic Outlet Syndrome.4 
 

On August 7, 2006, a Navy  psychiatrist submitted a report for the DMB.  He described 

her then-current condition as follows: 

 
She displays no problems with speech or behavior.  She does get up from time to time to stand due 
to  pain  upon  sitting  for  prolonged  periods.    Her  mood  is  mildly  irritable  and  depressed  with 
decreased affect range.  Her thought processes are linear, logical and goal directed. … Her judg-
ment and insight are good as she shows good knowledge and decision making regarding her medi-
cal care.  She does not display any cognitive problems although this is not tested formally. 
 
The psychiatrist noted that the applicant was being treated for “Pain Disorder Associated 
with Psychological Factors and a General Medical Condition” and also an “Adjustment Disorder 
with  Mixed Anxiety and Depressed Mood.”  He  stated that the applicant  told him that  she had 
become  withdrawn  and  depressed  since  a  psychologist  had  diagnosed  her  with  Somatization 
Disorder  and  her  command  and  other  doctors  believed  she  was  not  really  in  pain.    Zoloft  had 
alleviated her mood and anxiety.  The psychiatrist found that the applicant’s symptoms of  poor 
sleep,  depressed  mood,  poor  appetite,  increased  isolation,  decreased  energy  and  activity,  and 
poor concentration had remained steady since March 2005.  He also noted that she was anxious 
and depressed because of her uncertain future and ongoing pain.  The psychiatrist diagnosed her 
with “Major Depression, Single Episode, Moderate” and stated that her social and occupational 
functioning were moderately affected by this condition.  He also diagnosed her with “Pain Dis-
order  Associated  with  Both  Psychological  Factors  and  a  General  Medical  Condition,  Chronic” 
and noted that this condition severely impaired her military service and industrial capacity. 

 
On  August  17,  2006,  the  applicant  underwent  range  of  motion  testing  of  her  thoraco-

lumbar spine.  Her flexion was measured three times at 42 degrees, 36 degrees, and 37 degrees. 

                                                 
4  Thoracic  outlet  syndrome  (TOS)  is  caused  by  compression  of  the  subclavian  artery  (arterial),  vein  (venous),  or 
brachial  plexus  nerve  (neurogenic  or  neurologic)  in  the  shoulder.    It  can  be  treated  with  surgery.    Arterial  TOS 
reduces blood pressure in the arm and causes signs of emboli, such as blue or black spots, on the hand.  Venous TOS 
causes swelling of the arm.  Neurogenic TOS causes pain radiating down the arm, weakness in the arm and hand, 
and  numbness  in  the  fourth  and  fifth  fingers.    “Disputed”  TOS  is  diagnosed  in  “a  large  number  of  patients  with 
chronic arm and shoulder pain of unclear cause.  The lack of sensitive and specific findings on physical examination 
or laboratory markers for this condition frequently results in diagnostic uncertainty.” Eugene Braunwald  et al., eds., 
HARRISON’S PRINCIPLES OF INTERNAL MEDICINE, 15TH EDITION (McGraw-Hill, 2001), p. 89. 

 

 

 
On September 27, 2006, the applicant underwent evaluation for thoracic outlet syndrome 
at a vascular surgery clinic.  Dr. S, the chief of thoracic surgery, reported that the applicant pre-
sented  complaining  of  “left  shoulder  pain,  left  arm  pain,  and  debilitating  left  upper  extremity 
pain,”  which  had  not  been  “ameliorated  with  narcotics,  muscle  relaxants,  physical  therapy,  or 
other  modalities.”    The  applicant  stated  that  she  did  not  have  any  blue  or  black  spots  on  her 
hands  or  fingers  or  any  swelling  of  her  upper  extremities.    She  reported  that  her  pain  was  not 
increased  by  repetitive  motions,  writing,  or  similar  use  of  her  hands  but  that  she  could  not  do 
anything for long because the pain was so severe.  The doctor reported that the applicant did not 
have arterial or venous thoracic outlet syndrome.  However, she complained of pain, numbness, 
and weakness in her arm and hand.  Therefore, he reported that 
 

[s]everal  features  of  neurologic  thoracic  outlet  syndrome  exist  in  this  patient  and  as  this  is  typi-
cally  a  diagnosis  of  exclusion  and  she  has  no  evidence  of  any  significant  cervical  pathology  or 
peripheral  nerve  traumatic  injury  to  explain  her  symptoms,  this  remains  a  viable,  potential  diag-
nosis  on  this  patient.    …  This  patient  would  be  best  served  by  referral  to  an  outside  facility  for 
definitive  evaluation  for  neurologic  thoracic  outlet  syndrome  and  potential  management  of  this 
disease process. 

 

The  applicant  also  underwent  more  MRIs  pursuant  for  the  DMB,  which  showed  the 

following:  

 

  Lumbar spine MRI: 

Findings:  There is no  spondylolisthesis or evidence of spondylosis.  The vertebral body  heights 
are well maintained.  There are no significant vertebral marrow signal abnormalities.  The conus 
medullaris is normal in position, located at L1.  The cauda equine is grossly unremarkable. 
 
There is no significant desiccation or loss of height of the lumbar discs with incidental note made 
of  what  is  likely  a  mildly  hypoplastic  L5-S1  disc.    There  are  moderate  posterior  disc  bulges 
throughout the lumbar spine.  There is no evidence of focal disc protrusion, central canal stenosis 
or significant compressive neural foraminal stenosis.  The broad-based disc protrusion at T12-L1 
is described on the thoracic spine MRI report of the same day. 
 
IMPRESSION:    No  evidence  of  focal  disc  protrusion,  central  canal  stenosis  or  significant  com-
pressive neural foraminal stenosis at the L1-2 through L5-S1 levels. 

  Thoracic spine MRI: 

Findings:  There is no spondylosis.  The vertebral body heights are well maintained.  There are no 
significant vertebral marrow signal abnormalities.  The thoracic cord is normal in contour, caliber 
and  signal  characteristics.    There  is  very  mild  desiccation  and  mild  loss  of  height  of  the  T6-7 
through T9-10 discs.  Again noted are minor posterior disc bulges at T6-7 and T7-8.  There is no 
evidence of focal disc protrusion, central canal stenosis or gross neural foraminal stenosis.  There 
is mild desiccation and loss of height of the T12-L1 disc.  There has been no significant change in 
the mild, broad-based central disc protrusion at this level without associated central canal stenosis 
or cord impingement.  There is no gross neural foraminal stenosis.  
 
IMPRESSION:  No significant interval change  with a stable, noncompressive, broad-based T12-
L1 disc protrusion. 
 

 

 

 

 

 

 

  Cervical spine MRI: 

 

IMPRESSION: 
1. 
 Straightening of the usual cervical lordosis and mild multilevel disc desiccation. 
2. 
 At C3-4, there is left posterolateral disc bulge with mild to moderate left foraminal narrowing. 
3.  At  C4-5  and  C6-7,  there  is  slight  posterolateral  disc  bulge  with  mild  proximal  left  foraminal 

narrowing. 

4.  At  C5-6,  there  is  approximately  2  mm  broad-based  central  disc  bulging,  effacing  the  ventral 

thecal sac and resulting in slight proximal foraminal encroachment bilaterally. 

5.  Following the intravenous administration of gadolinium contrast, no abnormal intra- or extra-

axial enhancement is appreciated. 

On  October  11,  2006,  the  DMB  summarized  and  submitted  these  reports  to  the  FPEB 
along with an email dated July 25, 2006, from the applicant describing how, on a scale of 1 to 
10, her pain was at 8 but at 4 to 5 with medication and at 0 immediately following her physical 
therapy sessions.  She explained  that she had suffered shoulder pain since May 2006 when she 
took a misstep and “felt something pull in the upper left shoulder blade and back” although she 
did not fall.  The applicant also described her constant back pain, which radiated to her feet and 
made it hard to sit for long, and pain, numbness, and weakness in her lower extremities, as well 
as vertigo, when walking. 

 
On  October  14,  2006,  the  applicant’s  commanding  officer  endorsed  the  DMB  report, 

stating that the applicant continued to perform only administrative work. 
 

On November 17, 2006, the applicant’s attorney submitted to the FPEB her rebuttal to the 
DMB report.  He stated that she should be awarded a 70% combined disability rating based on 
the following ratings: 
 

  50% for pain disorder (9422) – The attorney argued that the DMB ignored the fact that 
the  applicant  had  been  diagnosed  with  both  moderate  Major  Depressive  Disorder  and 
severe Pain  Disorder  and that the Pain  Disorder  should therefore be “the primary unfit-
ting diagnosis for psychiatric purposes, given the degree of severity of this condition vice 
the Major Depressive Disorder.”  He also noted that the psychiatrist found the applicant’s 
GAF to be 55 and argued that she should receive at least a 30% rating for pain disorder 
and that the more appropriate rating would be 50%. 

  20%  for  bilateral,  mild  incomplete  paralysis  of  the  sciatic  nerve  (8520)  –  The  attorney 

repeated the arguments that he made to the FPEB in his brief dated June 20, 2006. 

  20% for thoracolumbar strain (5237) – The attorney noted that radiographic studies and 
MRIs had shown mild degenerative changes at L4-5, DDD with desiccation and bulging 
at T12-L1, and disc bulging at T6-7 and T7-8, and that a new range of motion study on 
August  17,  2006,  had  shown  forward  flexion  of  just  38  degrees.    He  argued  that  the 
evidence supported at least a 20% rating. 

  20% for thoracic outlet syndrome (analogous to 8599/8513)  – The attorney noted that a 
September 2006 addendum to thoracic surgery report stated that a diagnosis of neuralgic 
thoracic  outlet  syndrome  was  “viable”  for  the  applicant  and  that  her  ability  to  perform 

 

 

 

 

 

certain  duties  was  significantly  limited  by  “pain  that  she  experiences  in  her  left  upper 
extremity.”  He also noted that an MRI of the cervical spine in July 2006 had shown disc 
desiccation and bulging at C3-4, C4-5, C5-6, and C6-7.  The attorney argued that a diag-
nosis of thoracic outlet syndrome best reflects the nature of the applicant’s symptoms and 
degree  of  impairment  and  that  her  degree  of  impairment  under  this  diagnosis  would 
warrant  a  20%  rating.    However,  he  suggested  that  a  range  of  motion  study  should  be 
conducted to determine whether the applicant’s cervical condition would be more appro-
priately evaluated under VASRD code 5237 instead. 
 
On  January  9,  2007,  the  FPEB  recommended  that  the  applicant  be  permanently  retired 
with a 60% combined disability rating based on a 30% disability rating for pain disorder (9422), 
a  20%  rating  for  incomplete  paralysis  of  the  sciatic  nerve  (8520),  and  20%  rating  for  thoraco-
lumbar strain (5237).  In an amplifying statement, the FPEB explained its decision as follows:   

 
1)    Evaluee  suffers  from  Pain  Disorder  with  both  psychological  and  general  medical  conditions 
(VA Code 9422).  Even though the report dated 07 August 2006 from [the psychiatrist] found her 
military and social/occupational impairment [to be] severe,  the symptoms reported only  substan-
tiate  a  disability  rating  of  30%.  These  symptoms  included:  depressed  mood,  poor  energy,  poor 
sleep, decreased activity  level, poor appetite.  Examination revealed no problems  with speech or 
behavior, mood was mildly irritable, and depressed with decreased affect.  Her thought processes 
were  linear,  logical  and  goal  directed.    Her  judgment  and  insight  were  good  and  she  had  intact 
impulse control.  No obvious cognitive problems were displayed. 
 
2)  Evaluee suffers from Bilateral Sciatic Nerve-Paralysis-Incomplete-Mild (VA Code 8520).  The 
nerve conduction studies done 29 March 2006 showed mild left L5 and S1 radiculopathy and mild 
right S1 radiculopathy.  This medical documentation substantiates a total disability rating of 20% 
for these conditions after the bilateral factor was added. 
 
3)  Evaluee  suffers  from  Thoracolumbar  Strain  (VA  Code  5237).    Active  range  of  motion 
measurements using a goniometer done 17 August 2006 showed an average forward flexion of 38 
degrees.  This equates to a disability rating of 20%. 
 
4)  There  is  no  substantial  evidence  for  a  diagnosis  for  Thoracic  Outlet  Syndrome  (VA  Code 
8599/8513).  An evaluation by [Dr. S], thoracic surgeon, showed there were no findings to make a 
diagnosis of either arterial or venous thoracic outlet syndrome.  He felt there were several features 
of  neurologic  thoracic  outlet  syndrome.    He  further  stated  that  there  was  no  evidence  of  any 
significant  cervical  pathology  or  peripheral  nerve  traumatic  injury  to  explain  her  symptoms  and 
that  a  diagnosis  of  neurologic  thoracic  outlet  syndrome  would  be  a  diagnosis  of  exclusion.    The 
Board felt that there was not enough evidence to find this condition ratable and chose to have her 
upper extremity pain included in the diagnosis of Pain Disorder associated with both psychologi-
cal and general medical conditions. 
 
On  February  22,  2007,  the  applicant  acknowledged  the  FPEB’s  recommendation  and 
opted  not  to  submit  a  rebuttal.    The  recommendation  was  approved  by  the  Commander  of  the 
Personnel Command on May 1, 2007, following a legal sufficiency review.  On June 1, 2007, the 
applicant was medically retired from the Coast Guard after 16 years of service with a 60% com-
bined  disability  rating  for  a  pain  disorder;  incomplete,  mild  paralysis  of  the  sciatic  nerve;  and 
thoracolumbar strain as recommended by the FPEB. 
 
 
On  February  13,  2008,  the  DVA  awarded  the  applicant  a  100%  disability  rating  retro-
active to her date of retirement because the DVA found her “unable to work due to your service 

 

 

connected  disability/disabilities.”    The  DVA’s  decision  stated  that  she  had  an  overall  or  com-
bined rating of 90% based on the following separate ratings for service-connected disabilities: 
 

  50%  for  major  depression  with  symptoms  such  as  “occupational  and  social  impairment 
with  reduced  reliability  and  productivity  due  to  such  symptoms  as  flattened  affect;  cir-
cumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; 
difficulty  in  understanding  complex  commands;  impairment  of  short-  and  long-term 
memory  …;  impaired  judgment;  impaired  abstract  thinking;  disturbances  of  motivation 
and mood; difficulty in  establishing  and maintaining  effective  work  and  social  relation-
ships.”    The  doctor  noted  that  the  applicant  complained  of  sadness,  depression,  crying 
spells, sleep disturbance, and decreased appetite, motivation, and self-esteem. 

 

 

 

  40% for DDD of the thoracolumbar spine with symptoms such as pain, stiffness, aching, 
and forward flexion of 30 degrees or less.  The doctor reported that the applicant had just 
15 degrees of flexion with pain, an antalgic gait, spasms, and radiating pain. 

  30% for IDS of the cervical spine with symptoms such as pain, stiffness, aching, and for-
ward  flexion  of  15  degrees  or  less.    The  doctor  noted  that  the  applicant  complained  of 
cervical pain with daily flares and radiation, which increased upon twisting and shifting, 
spasms, and tenderness and showed just 10 degrees of flexion with pain. 

The DVA also  awarded the applicant the following disability ratings for conditions that 
the Coast  Guard did  not rate because they did  not  make her unfit for military service:  10% for 
recurrent  ovarian  cysts,  10%  for  irritable  bowel  syndrome,  10%  for  chronic  sprain  of  the  right 
ankle,  10%  for  varicose  veins,  10%  for  left  shoulder  strain,  10%  for  chronic  right  knee  sprain 
with  degenerative  joint  disease  and  chondromalacia,  and  10%  for  a  tender  scar  following  a 
bunionectomy on her right big toe. 
 
 
On August 12, 2010, a doctor who has been treating the applicant since December 2008 
wrote a letter for the applicant, which she submitted with her application.  The doctor stated that 
MRIs of the applicant’s spine conducted in 2005 and 2006 revealed protrusion and disc desicca-
tion  at  T12-L1;  minimal  annular  disc  bulges  at  T6-7  and  T7-8;  slight  disc desiccation  at  C2-3; 
disc desiccation and bulging at  C3-4, C4-5, C5-6;  and disc bulging at  C6-7.  The doctor noted 
that the applicant had received physical therapy, chiropractic care, behavioral medicine therapy, 
gabapentin, and an epidural  steroid  injection; was “maintained on chronic opioid therapy”; and 
was also being treated for depression.  The doctor stated that he does not believe that the appli-
cant’s “moderate severity pain” with inability to sit, stand, or walk for long periods will improve 
significantly in the future, which makes her uncompetitive for employment. 
 
 
DVA issued its decision in 2008. 
 

The  applicant  also  submitted  several  medical  reports  regarding  her  condition  since  the 

VIEWS OF THE COAST GUARD 

 
 
in which he recommended that the Board deny relief in this case.   

On August 16, 2011, the Judge Advocate General (JAG) submitted an advisory opinion 

 

 

 
 
The  JAG  argued  that  the  application  was  untimely,  that  the  applicant  did  not  submit 
anything to justify her delay, that no error or injustice was committed in this case, and that the 
application  should  therefore  be  denied  based  on  its  untimeliness.   The JAG  also  noted  that  the 
applicant received all due process under the PDES and stated that her “only recourse regarding 
her disability rating rests with the VA.” 
 

In recommending denial, the JAG adopted the findings and analysis provided in a memo-
randum  prepared  by  the  Personnel  Service  Center  (PSC).    The  PSC  stated  that  the  applicant 
argued that her 60% combined rating is erroneous and unjust because the DVA has awarded her 
an overall 100% rating based upon unemployability; she should have received a 50% rating for 
her  mental  health  issues  because  the  DVA  rated  her  50%  for  depression;  she  should  have 
received  a  40%  rating  for  thoracolumbar  spine  impairment  because  the  DVA  gave  her  a  40% 
rating;  she  should  have  received  a  30%  rating  for  cervical  spine  impairment  because  the  DVA 
gave  her  a  30%  rating;  and  her  Pain  Disorder  should  be  rated  at  50%  because  the  psychiatrist 
characterized her condition as severe. 
 

Regarding  these  arguments,  the  PSC  stated  that  the  FPEB  assigns  ratings  under  the 
VASRD only for medical conditions that render the member unfit for duty and that a member’s 
“employability  is  not  a  factor  in  his/her  ability  to  perform  his  Coast  Guard  duties.”    The  PSC 
stated  that  the  DVA,  however,  “rates  all  service-connected  disabilities  for  their  impact  on  the 
veteran’s ability to function under the ordinary conditions of daily life including employment.  In 
other  words,  the  DVA  rates  conditions  for  their  impact  on  a  veterans’  daily  life.”    The  PSC 
alleged that because the Coast Guard and the DVA rate conditions for different purposes, “it is 
reasonable that the two agencies will achieve different rating results.” 

 
The PSC stated that under the VASRD, the FPEB cannot rate a member for multiple and 
similar mental health conditions, such as Major Depressive Disorder and Pain Disorder.  How-
ever,  if  the  two  diagnoses,  considered  separately,  would  result  in  different  ratings  under  the 
VASRD, the FPEB assigns the member the higher rating. 

 
The  PSC  stated  that  the  FPEB’s  findings  were  not  rebutted  by  the  applicant,  sustained 
review, and are well supported by the evidence of record.  The PSC argued that the later findings 
of the DVA “do not invalidate the accuracy, validity, and legality of the FPEB’s findings.”  The 
PSC concluded that the application should be denied. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
The applicant repeated her claim that her application was timely filed because she discov-
ered  that  the  ratings  she  received  from  the  Coast Guard  were  erroneous  when  she  received  the 
ratings from the DVA on February 13, 2008.  
 
 
The applicant stated that the DVA found only 10 degrees of flexion in her cervical spine 
on  July  31,  2007,  just  two  months  after  her  retirement  and  that  the  Coast  Guard’s  advisory 
opinion  did  not  take  into  consideration  the  possibility  that  the  applicant’s  condition  worsened 

 

 

between the FPEB and the date of her retirement.  The applicant stated that this range of motion 
limitation merits a 30% disability rating under DVA code 5237. 
 
 
The  applicant  stated  that  the  20%  rating  she  received  under  code  8520  for  incomplete 
paralysis  of  the  sciatic  nerve  and  the  20%  rating  she  received  for  thoracolumbar  strain  under 
code 5237 “adequately address the degree of disability secondary to this injury.” 
 
The  applicant  pointed  out  that  the  Navy  psychiatrist  diagnosed  her  with  two  separate 
 
mental  health  conditions—Pain  Disorder  and  Major  Depressive  Disorder—and  wrote  that  her 
impairment  due  to  depression  was  moderate  but  that  her  impairment  due  to  the  Pain  Disorder 
was severe.  The applicant alleged that at her DVA mental health examination on July 11, 2007, 
her GAF was 55, as the  Navy psychiatrist  had  found, and  that her symptoms  warranted a 50% 
rating for depression.  The applicant acknowledged that ratings should not be assigned for both 
depression  and Pain  Disorder  associated with  both  psychological  factors  and a  general  medical 
condition  but  argued that  “the degree of impairment  appears to  be severe enough to  justify the 
assignment  of  a  50%  disability  rating  for  this  condition,”  instead  of  30%.5      Moreover,  she 
argued, her condition could have declined after the FPEB but before her retirement date. 
 
The applicant submitted with her rebuttal a decision of the Social Security Administration 
 
dated March 3, 2011, showing that she filed a disability claim on February 16, 2010.  The Social 
Security Administration found that she had been disabled and unemployed since her retirement 
from the Coast Guard, that her mental condition caused moderate restrictions in daily living and 
moderate difficulties in maintaining concentration, etc., that she had residual functional capacity 
“to  perform  light  work  as  defined  in  20  CFR  404.1567(b)[6]  except  limited  to  simple,  routine, 
repetitive  work;  and  one  to  two  absences  a  month,”  that  her  previously  “acquired  job  skills  do 
not transfer to other occupations within the residual functional capacity,” and that “there are no 
jobs that exist in significant numbers in the national economy that the claimant can perform.” 
 

                                                 
5  Under  the  Veterans’  Affairs  Schedule  for  Rating  Disabilities  (VASRD)  at  38  C.F.R.  §  4.130,  the  following 
descriptions are provided for 50% and 30% ratings for a mental disorder: 

 

50%:  “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.” 

 

30%:    “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  often),  chronic  sleep  impairment,  mild  memory  loss  (such  as  forgetting  names, 
directions, recent events).” 
6 The Social Security Administration classifies working ability on the following increasing scale:  sedentary, light, 
medium,  heavy, and very  heavy.   “Light  work” is defined  as involving  “lifting  no  more than 20 pounds at a time 
with  frequent  lifting or carrying of objects  weighing  up to  10 pounds. Even though the  weight lifted  may be  very 
little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of 
the  time  with  some  pushing  and  pulling  of  arm  or  leg  controls.  To  be  considered  capable  of  performing  a  full  or 
wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light 
work,  we determine that he or she can also do sedentary  work, unless there are additional limiting factors such as 
loss of fine dexterity or inability to sit for long periods of time.” 20 CFR 404.1567(b). 

 

 

The  applicant  also  submitted  a  DVA  medical  report  dated  December  5,  2007,  showing 
 
that she sought treatment for eczema and back pain.  She gave the doctor her MRIs of her “neck 
and  lower  back  showing  various  disc  bulging  without  spinal  stenosis  or  nerve  impingement 
(result in record), has tried physical therapy in the past, taking valium and vicodin for pain, was 
scheduled  to  see  neurosurgeon  in  2005  but  never  was  called.”    The  doctor  diagnosed  her  with 
“discogenic  syndrome”  and  “spondylosis:  progressive  since  2005,”  prescribed  her  vicodin  and 
valium for pain and spasms, and referred her to a neurosurgeon. 
 

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 10 U.S.C. § 1552.   

 

2. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant  to  33  C.F.R.  § 52.51,  denied  the  request  and  recommended  disposition  of  the  case 
without a hearing.  The Board concurs in that recommendation.7   

 
3. 

Under 10 U.S.C. § 1552(b), an application to the Board must be filed within three 
years  after  the  applicant  discovers  the  alleged  error  or  injustice  in  her  record.    The  applicant 
alleged  that  her  application  was  timely  filed  because  she  received  her  DVA  rating  decision, 
which  persuaded  her  that  her  Coast  Guard  disability  rating  was  erroneous,  in  February  2008.  
However,  the  record  shows  that  the  applicant  was  well  aware  of  her  medical  conditions,  had 
received multiple medical opinions, and had the assistance of counsel in considering the FPEB’s 
recommended disability ratings in 2006 and 2007.  Moreover, the DVA’s decision does not show 
that  the  Coast  Guard  misdiagnosed  or  otherwise  failed  to  reveal  the  applicant’s  medical  condi-
tions to her even though the Coast Guard evaluated some of her medical conditions under differ-
ent codes and at lower ratings than did the DVA and does not rate members for unemployability.  
Therefore, the Board finds that the applicant’s date of discovery of the alleged error and injustice 
in her military record was June 1, 2007.8  Her application was not timely filed. 
 

4. 

Pursuant  to  10  U.S.C.  §  1552(b),  the  Board  may  excuse  the  untimeliness  of  an 
application if it is in the interest of justice to do so.  To determine whether the interest of justice 
supports a waiver of the statute of limitations, the Board should “analyze both [a] the reasons for 
the delay and [b] the potential merits of the claim based on a cursory review.9       
 

                                                 
7 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”); Armstrong v. United States, 205 
Ct. Cl. 754, 764 (1974) (stating that a hearing is not required because BCMR proceedings are non-adversarial and 10 
U.S.C. § 1552 does not require them). 
8 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  §  1552(b)  is  tolled  during  a 
member’s active duty service). 
9 Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. 
Cir. 1995). 

 

 

5. 

The applicant did not  explain or justify her delay in applying to the Board.  Her 
record shows that she suffers from depression, which in theory could have delayed her applica-
tion.  However, the record also shows that while suffering this depression and within three years 
of her  retirement,  she was able to  file  and pursue  disability claims with  both  the DVA  and the 
Social Security Administration.  Therefore, the Board finds that her delay is not justified because 
she could have applied for correction of her military record more promptly.   

 
6. 

A cursory review of the merits of this case indicates that the applicant received all 
due  process  under  the  PDES  and  was  ably  represented  by  counsel.    She  opted  not  to  rebut  the 
recommendation of the FPEB that she receive a 60% combined disability rating based on a 30% 
disability  rating  for  a  pain  disorder,  a  20%  rating  for  incomplete  paralysis  of  the  sciatic  nerve, 
and  20%  rating  for  thoracolumbar  strain.   Although  the  applicant  alleged  that  the  higher  DVA 
ratings show that her medical conditions and particularly her range of motion worsened between 
the date of the FPEB and her retirement on June 1, 2007, there is no evidence of such deteriora-
tion in her Coast Guard medical records.  The Board is convinced that if the applicant’s forward 
flexion  of her cervical  spine (neck) had been reduced to  10 degrees  before she retired  or if the 
forward flexion in her back had significantly decreased in the six months before her retirement, 
she would have complained about it while still on active duty and her complaints would appear 
in her Coast Guard medical records.  Moreover, the fact that the DVA awarded her higher ratings 
does not  prove that the  Coast  Guard’s ratings were inaccurate.10   In particular, the Board notes 
the  applicant’s  claim  that  she  should  have  received  a  50%  rating  for  her  mental  disability 
because, although the Navy psychiatrist reported her depression to be moderate, he reported that 
her pain disorder severely impaired her military service, and the DVA gave her a 50% rating for 
her mental disability.  However, the FPEB’s amplifying statement shows that the FPEB noticed 
the  Navy  psychiatrist’s  assessment  that  her  occupational  impairment  was  severe  but  compared 
her actual reported symptoms to the VASRD rating descriptions and found that her mental condi-
tion  warranted  a  30%  rating.   The  applicant  did  not  appeal  the  FPEB’s  decision,  which  is  sup-
ported in the record and is not inconsistent with the VASRD.  The Board also notes that although 
the  DVA  found  the  applicant  to  be  unemployable,  she  was  performing  administrative  work  for 
the Coast Guard throughout her PDES processing.  The Board’s cursory review of the merits of 
the applicant’s claim shows that it cannot prevail. 

 
7. 

Accordingly, the Board will not excuse the application’s untimeliness or waive the 

statute of limitations.  The applicant’s request should be denied. 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 
 

 

                                                 
10  DVA  ratings  are  “not  determinative  of  the  same  issues  involved  in  military  disability  cases.”    Lord  v.  United 
States, 2 Cl. Ct. 749, 754 (1983); see Dzialo v. United States, 5 Cl. Ct. 554, 565 (1984) (holding that a VA disability 
rating “is in no way determinative on the issue of plaintiff’s eligibility for disability retirement pay.   A long line of 
decisions  have  so  held  in  similar  circumstances,  because  the  ratings  of  the  VA  and  armed  forces  are  made  for 
different purposes.”). 

 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG  (retired),  for  correction  of  her 

military record is denied.  

ORDER 

 

  

 
 Francis H. Esposito 

 

 

 
 
 Erin J. Greten 

 

 
 Vicki J. Ray