DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.   2012-057 
 
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 January 11, 2012, 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  September  7,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
On February 19, 2002, the applicant was discharged by reason of physical disability due 
to “extensive degenerative arthritis, right knee [and] mild to moderate arthritis, left knee,” with a 
combined  10%  disability  rating.    He  asked  the  Board  to  correct  his  record  to  show  that  the 
following conditions also caused or contributed to his unfitness to perform the duties of his rate 
and or grade at the time of his separation: sleep apnea, minor degenerative changes of the lumbar 
spine  with  narrowing  of  the  L4-5  disk  space,  carpal  tunnel  syndrome  of  the  right  hand,  and 
carpal  syndrome  of  the  left  hand.1    He  was  discharged  because  of  his  bilateral  knee  disability 
with separation pay.   
 
On April  9,  2002,  the  applicant  filed  a  claim  with  the  Department  of  Veterans’ Affairs 
 
(DVA). On April 23, 2003, the DVA granted him a combined 70% disability rating for bilateral 
degenerative  arthritis  of  the  knee,  sleep  apnea,  degenerative  changes  of  the  lumbar  spine,  and 
bilateral  carpal  tunnel  syndrome.    On August  28,  2003,  the  applicant  filed  a  DVA  claim  for  an 
increased disability rating.  On June 10, 2004, the DVA granted the applicant a 100% disability 
rating  because  the  applicant  was  unable  to  secure  or  to  follow  “a  substantially  gainful 
occupation” as a result of his service-connected disabilities.  The applicant alleged that his DVA 

                                                 
1    The  Physical  Disability  Evaluation  System  found  and  rated  the  applicant’s  bilateral  knee  condition  as  being 
unfitting for continued service.  

 

 

diagnosed disabling conditions  were present  at  the time of his  discharge from  the Coast  Guard 
and they affected his ability to do his job as an electrician’s mate.  
 
 
Prior to filing an application with the BCMR, the applicant filed an application with the 
Physical  Disability  Board  of  Review  (PDBR)  under  10  U.S.C.  1554(a)  and  Department  of 
Defense  Instruction  6040.44  (2009)2  seeking  an  increase  in  the  Coast  Guard’s  combined  10% 
disability rating based upon the DVA’s disability rating determinations.  
 

 On March 19, 2010, the PDBR increased the applicant’s disability rating for his bilateral 
knee  arthritis  to  20%.    However,  the  PDBR  did  not  have  jurisdiction  with  regard  to  the 
applicant’s  other  alleged  disabilities  because  none  were  mentioned  in  the  Physical  Disability 
Evaluation System (PDES) processing prior to his discharge.3   The PDBR told the applicant that 
he  retained  the  right  to  file  an  application  with  the  Coast  Guard  BCMR  asking  to  correct  his 
record to show that he was unfit to perform the duties of his rate due to the other disabilities that 
were diagnosed by the DVA.   
 

BACKGROUND 

 

Coast Guard Physical Disability Evaluation System (PDES) Processing  

 

On  October  12,  2001,  a  Medical  Board4  was  convened  to  evaluate  the  applicant’s 
 
bilateral  knee  condition.    The  Medical  Board  Narrative  Summary  stated  that  the  applicant 
suffered from “bilateral knee pain secondary to advanced degenerative arthritis, left knee, [and] 
mild  degenerative  arthritis,  right  knee.”    The  report  offered  the  following  final  diagnosis  and 
recommendations: 
 

[The applicant] has rather extensive degenerative arthritis involving the right knee 
and  the  beginnings  of  some  mild  to  moderate  arthritis  involving  the  left  knee.  
With the patient’s relatively young age, there are not any good surgical options to 
offer  him  at  this  point  with  regards  to  the  right  knee.    With  regards  to  the  left 
knee,  it  is  possible  that  he  could  go  under  arthroscopy  with  assessment  of  both 
meniscal  and  chondral  surfaces  and  possibly  improve  his  symptomatology.  
Unfortunately, his right knee is going to continue to be quite limiting for him, and 
he needs to be placed on permanent restrictions due to the severity of his arthritis.  

                                                 
2   According to DoD Instruction 6040.44, the purpose of the PDBR is to reassess the accuracy and fairness of the 
combined disability ratings assigned to service members who were discharged as unfit for continued military service 
by the military departments with a combined disability rating of 20 percent or less and were not found to be eligible 
for retirement.   
3  The PDES is a Coast Guard structure composed of administrative boards and reviewing and approving authorities 
whose  common  purpose  is  evaluating  members  for  their  physical  ability  to  continue  the  required  performance  of 
their  duties  and  the  equitable  application  of  the  laws  relating  to  separation  or  retirement  of  members  because  of 
physical disability.  Article 2-A-39 of the PDES Manual (1996) 
4 A medical board is a clinical body comprised of 2 or more medical officers who evaluate an individual’s condition 
in  light  of  the  requirements  of  military  duty  and  provide  a  written  professional  opinion  concerning  the  evaluee’s 
physical and mental qualifications in relation to military service and makes certain recommendations regarding the 
evaluee.  The first such report in each evaluee’s case is an IMB (initial medical board) and all subsequent reports are 
DMBs (disposition medical boards).  Article 2-A-29 of the PDES Manual.   

 

 

These  restrictions  include  no  running,  no  jumping,  no  crawling,  no  kneeling,  no 
climbing, no repetitive lifting greater than 30 lbs.   

    
 
The Medical Board referred the applicant’s case to the Central Physical Evaluation Board 
(CPEB)5  for  adjudication  with  his  commanding  officer’s  (CO’s)  endorsement  to  the  Medical 
Board.  The CO recommended that the applicant be separated from the Coast Guard by reason of 
physical  disability.    The  CO  wrote  that  the  applicant  was  limited  in  the  performance  of  the 
normal duties of his grade/rate due to extensive degenerative arthritis of the right knee and mild 
to  moderate  arthritis  in  the  left  knee.    The  CO  noted  his  poor  prognosis  and  that  he  would  be 
permanently  restricted  in  his  jumping,  crawling,  kneeling,  and  climbing  and  in  lifting  of  no 
greater  than  30  pounds.    He  concurred  with  the  Medical  Board  that  the  applicant  could  not 
perform the duties normally assigned to his grade and rate.   
 
 
On  December  12,  2001,  the  Central  Physical  Evaluation  Board  (CPEB)  diagnosed  the 
applicant as suffering from bilateral degenerative arthritis with a combined 11% disability rating 
rounded  down  to  10%.    The  CPEB  recommended  the  applicant’s  separation  from  the  Coast 
Guard with severance pay. 
 
On  January  7,  2002,  the  applicant  accepted  the  tentative  CPEB  findings  and 
 
recommendations  and  waived  his  right  to  a  formal  hearing.      On  January  26,  2002,  the  Chief 
Counsel of the Coast Guard found the CPEB proceeding to be in acceptable form and supported 
by substantial evidence of record.  
 
 
On  January  30,  2002,  the  Chief  of  the Administrative  Division,  Coast  Guard  Personnel 
Command  approved  the  CPEB’s  findings  and  recommendations  and  directed  that  the  applicant 
be separated from the Coast Guard with severance pay.   
 
Department of Veterans’ Affairs (DVA) Rating Decisions 
 
The  applicant  submitted  a  copy  of  the  DVA  rating  decision  of April  21,  2003,  granting 
 
him disability ratings retroactive to February 19, 2002.  In addition to the 10% disability rating 
for degenerative joint disease in each knee, the DVA determined that the applicant suffered from 
service-connected  sleep  apnea,  degenerative  changes  of  the  lumbar  spine,  and  carpal  tunnel 
syndrome in both hands.6       
 
  
The  DVA  gave  the  applicant  a  50%  disability  rating  for  sleep  apnea  because  he  was 
prescribed a nasal  continuous positive airway pressure (CPAP) machine.  The DVA determined 
that the applicant was diagnosed with sleep apnea by polysomnogram on October 28, 2001.    
 
 
The DVA assigned the applicant a 10% disability rating for minor degenerative changes 
to  the  lumbar  spine  with  some  narrowing  of  the  L4-5  disk  space  based  on  their  July  15,  2002 

                                                 
5  The  CPEB  is  a  permanently  established  administrative  body  convened  to  evaluate  the  physical  fitness  of  active 
duty and reserve members to perform their assigned duties based upon the record.   
6  The DVA stated that the applicant’s Coast Guard medical record shows that he received treatment for sleep apnea 
and pain in his finger while on active duty.  The medical record the Board received from the DVA does not contain 
entries from the applicant’s Coast Guard medical record.   

 

 

examination.    The  DVA  examination  showed  the  applicant’s  range  of  motion  limited  to  70 
degrees  flexion  (normal  flexion  is  95  degrees),  20  degrees  extension  (normal  extension  is  35 
degrees),  30  degrees  lateral  flexion  bilaterally  (normal  lateral  flexion  is  40  degrees),  and  20 
degrees  rotation  bilaterally  (normal  rotation  is  35  degrees).    The  DVA  stated  the  applicant 
experienced pain on all ranges of motion.   
 
 
The DVA assigned the applicant a 10% disability rating for carpal tunnel syndrome of the 
right  hand  with  moderate  degenerative  changes.    The  DVA  rating  decision  stated  that  the 
applicant’s Coast Guard medical record showed that he was treated in March and April 1995 for 
injuries  to  the  fourth  finger  of  his  right  hand.    The  rating  decision  stated  that  the  DVA 
examination revealed no muscle atrophy and that the hand had full muscle strength.  It also noted 
that  there  was  no  swelling  and  that  range  of  motion  was  intact.   The  DVA  rating  decision  also 
stated the following: 
 

You  had  positive  Tinel’s  and  Phalen’s  test.    You  had  decreased  sensation  to 
pinprick  in  the  right  4th  and  5th  fingers.    An  electromyograph  performed  in 
connection  with  your  VA  examination  showed  that  there  was  evidence  of  mild 
carpal  tunnel  syndrome  involving  only  the  motor  branch  of  the  right  and  left 
medial nerve.  X-rays in July 2002 showed moderate degenerative changes of the 
right 4th and 5th distal interphalangeal joints.   
     
 
 
The DVA assigned the applicant a 10% disability rating for carpal tunnel syndrome of the 
left  hand  for  similar  findings  as  those  of  the  right  hand  discussed  above.    The  applicant’s 
combined disability rating from the DVA was 70%. 
 
On  June  10,  2004,  the  DVA  increased  the  applicant  ratings  for  degenerative  changes  to 
 
the  lumbar  spine  to  40%,  degenerative  joint  disease  of  the  left  knee  to  20%  and  degenerative 
changes  to  the  right  knee  to  20%,  for  a  combined  disability  rating  of  90%.    The  DVA  rating 
decision also stated that the applicant was entitled to individual unemployability as of February 
20, 2002 because the applicant was unable to secure or follow a substantially gainful occupation 
as a result of service-connected disabilities.  The rating decision noted that the applicant had not 
been employed since he left the service, that he had been on Percocet for low back pain, and he 
had requested a walker because he was falling frequently due to his bilateral knee condition.  The 
applicant’s wife indicated to the DVA that the applicant was taking morphine and Percocet  and 
could not obtain full or part time employment due to the adverse side effects of the medication.   
 

VIEWS OF THE COAST GUARD 

 
 
On  May  3,  2012,  the  Judge Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
advisory  opinion  recommending  that  the  Board  deny  relief  in  accordance  with  a  memorandum 
submitted by the Commander, Personnel Service Center (PSC).  In recommending denial of the 
applicant’s application, PSC reached the following conclusions: 
 

The  applicant  received  a  full  and  fair  hearing  in  accordance  with  law  and 
COMDTINST  M1850.2  (series)  [PDES  Manual].    The  applicant  reviewed  the 
diagnoses referred by the Medical Board to the [CPEB] and chose not to write a 

 

 

 

letter of exception.  In addition, when given the opportunity to reject the CPEB’s 
findings,  he  chose  to  accept  the  finding  that  he  was  only  10%  disabled.    The 
recommendations  of  the  CPEB  received  legal  review  and  were  approved  by  the 
Final Approval Authority.   
 
The  applicant’s  conditions  were 
thoroughly  and  properly  evaluated  and 
adjudicated.    The  determinations  were  logical,  legal,  and  correct.    Subsequent 
findings  by  the  DVA  do  not  invalidate  the  accuracy,  validity,  and  legality  of  the 
CPEB’s  findings.    The  CPEB’s  findings  were  supported  by  law  and  consistent 
with  the  guidance  of  the  VASRD  (Veterans Administration  Schedule  for  Rating 
Disabilities).    Moreover,  the  Coast  Guard  rated  the  applicant’s  conditions  based 
on  a  standard  of  fitness  for  continued  military  service.    Whereas,  the  DVA’s 
ratings were based on the impact his conditions have upon his quality of life.   
 
The  applicant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  his 
rating was incorrect or that an injustice has occurred.  Failing to meet his burden, 
the Coast  Guard’s actions are deemed  correct,  unlawful, and done in  good faith.  
Accordingly his petition should be denied.    
 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
response.  The Board did not receive a response from the Applicant.   

On  May  7,  2012,  a  copy  of  the  Coast  Guard’s  views  was  sent  to  the  applicant  for  a 

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.   Although the applicant was discharged in 2002, the application was 
timely  because  it  was  filed  with  the  Board  within  three  years  of  the  March  19,  2010  PDBR 
decision.7   
 
 
2.  The disability rating with respect to the applicant’s bilateral knee conditions has been 
adjudicated  by  the  PDBR.    The  PDBR  increased  the  applicant’s  Coast  Guard’s  rating  for  his 
bilateral knee disability from 10% to 20%.   According to DOD Instruction 6040.44, the finding 
and determination of the PDBR with regard to the applicant’s knee condition are final and non-
appealable.  Therefore, the 20% disability rating assigned by the PDBR cannot be reconsidered 
by the Board.  
 
 
3.  The Board has jurisdiction to consider whether the Coast Guard committed an error or 
injustice  by  not  deciding  whether  the  applicant’s  sleep  apnea,  lumbar  pain,  and  bilateral  carpal 
                                                 
7  See Ortiz v. Secretary of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994) (finding that an application to the Board is 
timely if filed within three years after the issuance of a final decision from the Discharge Review Board, which has a 
fifteen-year statute of limitations).   

 

 

tunnel  syndrome  were  unfitting  for  continued  service  during  his  PDES  processing.8    The 
applicant argued that his medical board and CPEB should be reviewed for fairness, consistency, 
and accuracy.  He argued that his 20% disability rating is inconsistent with the 100% disability 
rating granted to him by the DVA for various other conditions, including unemployability and is 
suspect.  For the reasons discussed below, the Board disagrees with the applicant’s argument.   
 
 
4.  Although the DVA granted the applicant disability ratings for certain other conditions 
that were not diagnosed by the Medical Board and CPEB, this Board has consistently held that a 
disability rating from the DVA for a condition not rated by the Coast Guard does not, in and of 
itself,  establish  that  the  Coast  Guard  committed  an  error  or  injustice  by  not  rating  any  of  the 
other conditions diagnosed and rated by 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.]”    
 
 
5.    The  Coast  Guard  Medical  Board  and  CPEB  found  the  applicant’s  bilateral  knee 
condition  to  be  unfitting  for  his  continued  service  in  the  Coast  Guard  as  an  electrician’s  mate.  
There was no other diagnosis of an unfitting condition made by the medical board or CPEB.  The 
applicant did not object to the medical board’s finding by filing a rebuttal.  Nor did he object to 
the  CPEB.   The  applicant  accepted  the  findings  of  the  CPEB  and  waived  his  right  to  a  formal 
hearing.    In  addition,  the  applicant’s  CO  agreed  with  the  Medical  Board  and  noted  only  the 
applicant’s  knee  condition  as  causing  the  applicant’s  inability  to  perform  the  duties  of  his  rate 
and/or grade.   
 
 
6.    The  DVA  rating  decisions  do  not  discuss  or  evaluate  to  what  extent  the  applicant’s 
other conditions interfered with his ability to perform his duties as an electrician’s mate or even 
whether  the  ratings  officer  considered  the  issue.    Rather,  the  DVA  rating  decisions  address 
whether the applicant’s conditions were service-connected disabilities and the impact they have 
on his civilian earning capacity or his quality of life.  A service-connected disability means that a 
condition was incurred or aggravated in the line duty while in the military.  Chapter 2.A.47 of the 
PDES  Manual  (1996).      A  service-connected  medical  condition  is  not  necessarily  unfitting  for 
military duty.  Unfit for duty is “the status of a member who is physically or mentally unable to 
perform the duties of the office, grade, rank, or rating because of physical disability.”   Chapter 
2.A.50 of the PDES Manual.    
 
 
7.  While the DVA rating decisions noted that the applicant was treated for sleep apnea 
with a CPAP in 2001, for an injury to his back in 1993, and for an injury to the fourth finger on 

                                                 
8 Section 5.e.(2) of Enclosure (3) to DODI 6040.44 states that the PDBR has authority to review “medical conditions 
determined  to  be  specifically  unfitting  for  continued  military  service,  as  previously  determined  by  the  Military 
Department PEB” and “[t]hose instances when the [member] requests the PDBR to review conditions indentified but 
not determined to be unfitting by the PEB of the Military Department concerned.”   

 

 

his  right  hand  in  1995,  they  do  not  discuss  what,  if  any,  impact  the  conditions  had  on  the 
applicant’s ability to perform his duties as an electrician’s mate.  
 
 
8.  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  applicant’s  bilateral  knee  condition  was  the  only  condition 
identified by the medical board, the CPEB, and the applicant’s CO as causing the applicant to be 
unable to perform the duties as an electrician’s mate, and the post-service DVA rating decisions 
are insufficient to prove otherwise.9   

 
9.  Accordingly, the applicant has failed to prove that the Coast Guard committed an error 

or injustice in his case.  Accordingly, his request should be denied.   
 
 

  
 

 

 

 
 
  

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 
9 The military record obtained from the Coast Guard and the medical record obtained from the DVA did not contain 
a complete copy of the applicant’s Coast Guard medical record. 

 

 

 

 

ORDER 

 

The  application  former  XXXXXXXXXXXXXXXXXXX,  USCG  for  correction  of  his 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Peter G. Hartman 

 

 

 
 Dana Ledger 

 

 

 
 Adam V. Loiacono