DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-068 
 
Xxxxxxxxxxxxxxxxxxxx 
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FINAL DECISION 

This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case upon receiving the 
completed application on January 31, 2012, and assigned it to staff member J. Andrews to pre-
pare 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 September 27, 2012, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant asked the Board to correct his record by raising his disability rating from 
20% to 40%.  The applicant stated that while on active duty he was processed for a medical sepa-
ration under the Coast Guard’s Physical Disability Evaluation System (PDES) following thora-
columbar spinal  fusion surgery, but  the  Formal  Physical  Evaluation  Board (FPEB) erroneously 
and unjustly found him to be only 20% disabled.  Therefore, he was discharged with severance 
pay  on  October  15,  2010,  instead  of  being  retired  with  disability  retired  pay  as  he  would  have 
been if the FPEB had correctly evaluated his disability. 
 
 
The applicant  alleged that  the FPEB arrived at its erroneously low rating because when 
measuring  his  forward  flexion,  his  Coast  Guard  doctor  allowed  him  to  bend  forward  from  the 
hip,  and  so  his  hip  flexion  was  included  in  the  measurement  of  his  forward  flexion,  which  the 
FPEB  relied  on  in  finding  that  the  forward  flexion  of  his  spine  warranted  only  a  20%  rating.  
However,  when  his  hip  flexion  is  excluded  from  the  measurement,  the  forward  flexion  of  his 
thoracolumbar spine is only 15% and clearly meets the criteria for a 40% rating.  The applicant 
alleged  that  the  rules  for  measuring  range  of  motion  under  the  Veterans’  Affairs  Schedule  for 
Rating Disabilities (VASRD), which the Coast Guard must follow, do not include hip flexion in 
the measurement of forward flexion of the thoracolumbar spine.   
 

The  applicant  stated  that  when  he  was  examined  by  a  physician  for  the  Department  of 
Veterans’  Affairs  (DVA)  after  his  discharge,  the  doctor  properly  measured  only  the  forward 
flexion of his thoracolumbar spine and so evaluated his disability properly at 40%.  The applicant 

 

 

argued that if the Coast Guard measures range of motion differently than the DVA, then it is not 
in  compliance  with  the  National  Defense  Authorization  Act  (NDAA)  of  2008,1  which  requires 
the  Armed  Forces  to  comply  with  all  applicable  existing  guidelines  under  the  VASRD.    The 
applicant  also  noted that the  Army and Navy  also  exclude hip  flexion  when assessing range of 
motion in the thoracolumbar spine and so having a different standard would unjustly place Coast 
Guard veterans at a disadvantage in comparison to the veterans of other military services. 

 
Therefore, the applicant  argued, the  Board should find that the Coast  Guard “erred  as a 
matter of law in  adopting a standard different  from  that imposed by the  governing regulation,” 
correct  his  forward  flexion  measurement  to  15%,  raise  his  disability  rating  to  40%,  and  either 
permanently retire him or place him on the temporary disabled retired list (TDRL).  The appli-
cant  supported  his  allegations  by  submitting  copies  of  records  related  to  PDES  processing,  the 
most relevant of which are included in the chronological summary of the record below. 
 

SUMMARY OF THE RECORD  

 
 
The applicant enlisted on November 17, 1992, became a machinery technician (MK rat-
ing), and served on continuous active duty until he was discharged in accordance with an FPEB’s 
recommendation  on  October  15,  2010.    The  FPEB’s  report,  dated  July  7,  2009,  recommended 
that  the  applicant  be  separated  with  severance  pay  and  a  20%  disability  rating  under  VASRD 
code 5241 for “spinal fusion; forward flexion of the thoracolumbar spine greater than 30 degrees 
but not greater than 60 degrees.”  The FPEB’s amplifying statement included the following para-
graphs: 
 

3)  The  Board  considered  the  documentary  evidence  provided  by  [a  physical  therapist],  dated  2 
July  2009,  concerning  the  evaluee’s  thoracolumbar  spine  range  of  motion.    [The  physical  thera-
pist]  provided  a  total  range  of  motion  of  35  degrees  forward  flexion,  yet  indicated  that  DeLuca 
complaint measurements, “don’t give a true picture of lumbar ROM due to their allowance of hip 
motion to be included in the measurement.”  Consequently, [the physical therapist’s] interpretation 
yielded  an  assessment  of  10  degrees  forward  flexion  from  the  non-fused  portion  of  his  spine, 
leaving  25  degrees  coming  from  his  hip  joints.    Regardless  of  [his]  interpretation,  current  law 
requires the use of DeLuca measurements  which permit flexion of hip joints in conjunction with 
thoracolumbar  spine  to  obtain  full  forward  range  of  motion,  therefore,  the  appropriate  measure-
ment  for  forward  flexion  is  35  degrees.    (see  enclosure  for  current  VASRD  Medical  Evaluation 
Board (MEB) guidance, photo forward flexion). 

5)  The  disability  for  Spinal  Fusion  (VASRD  code  5241):  forward  flexion  of  the  thoracolumbar 
spine greater than 30 degrees but not greater than 60 degrees is 20%. 

•   •   • 

 

                                                 
1 The NDAA of 2008, as codified at 10 U.S.C. § 1216a, states the following in pertinent part: 

In making a determination of disability of a member of the armed forces, the Secretary concerned 
shall  utilize  the  schedule  for  rating  disabilities  in  use  by  the  Department  of  Veterans  Affairs, 
including any applicable interpretation of the schedule by the United States Court of Appeals for 
Veterans  Claims;  and  may  not  deviate  from  the  schedule  or  any  such  interpretation  of  the 
schedule.    When  retiring  or  separating  a  member  of  the  armed  forces  for  reason  of  physical 
disability,  the  Secretary  concerned  shall  take  into  account  all  medical  conditions,  whether 
individually  or  collectively,  that  render  the  member  unfit  to  perform  the  duties  of  the  member’s 
office, grade, rank, or rating, to determine the member’s disability rating. 

 

 

On July 19, 2009, the applicant submitted a rebuttal to the FPEB’s report.  The applicant 
 
stated that the FPEB’s amplifying statement “made it clear that the members believe it is appro-
priate to include hip flexion when assessing the range of motion in the thoracolumbar spine” but 
that  this  position  in  contrary  to  that  taken  by  the  DVA  and  by  Senior  Medical  Advisors  to  the 
Army  Physical  Disability  Agency  and  the  Navy  Council  of  Review  Boards.    The  applicant 
argued  that  there  is  no  evidence  that  the  physician  who  measured  his  forward  flexion  for  the 
Coast Guard followed these guidelines but that a Tricare physician measured his ROM properly.  
Therefore,  the  applicant  concluded,  the  FPEB  had  made  “a  mistake  of  law  in  that  it  expressly 
stated  that  it  is  permissible  to  include  hip  flexion  when  assessing  the  range  of  motion  of  the 
thoracolumbar  spine.”    The  applicant  argued  that  because  his  forward  flexion,  when  properly 
measured,  was  15  degrees,  the  FPEB  should  assign  him  a  40%  disability  rating  under  the 
VASRD.2  The applicant attached to his rebuttal the following documents: 
 

  An email from an Army doctor dated July 17, 2009, advises the applicant’s counsel that 
since October 14, 2008, Army examiners had been specifically instructed to use the DVA 
worksheets; that the DVA worksheet provided that hip flexion should not be included in 
the measurement of forward flexion of the thoracolumbar spine; and that she would ask 
for Army guidance dated June 12, 2008, that does not mention exclusion of the hip flex-
ion measurement to be removed from the Army Physical Disability Agency’s website. 

 

 

  Army guidance dated June 12, 2008, which states that the NDAA of 2008 provides that 
the Army “will use the Veterans  Affairs Schedule for Rating Disabilities (VASRD) any 
applicable  interpretation  of  the  VASRD  by  the  U.S.  Court  of  Appeals  for  Veterans 
Claims.”  The guidance states that ROM of the thoracolumbar spine should be measured 
“from L5 to T1 as a unit by asking the Soldier to forward bend naturally as if to touch the 
floor.    Follow  the  range  of  motion,  keeping  the  goniometer  arm  along  the  mid-axillary 
line.    The  goniometer  base  is  to  be  kept  in  line  with  the  femur.    Record  the  angle  that 
subtends  the  arc  of  motion.”    The  guidance  also  states  that  the  DVA’s  worksheets  for 
measuring  ROM  “may  be  useful”  and  refers  practitioners  to  the  Guidance  for  Use  of 
Goniometer to measure spine ROM on the Army’s website.3 

  An email from a Senior Medical Advisor to the Navy Council  of Review Boards, dated 
July 17, 2009, advises that “especially where needed (e.g. for rating purposes in re unfit-
ting conditions), we insist that the MTFs [medical treatment facilities] isolate ROM of the 
thoracolumbar spine from that attributable to hip action.” 
 
On February 17, 2010, the president of the FPEB advised the applicant that his rebuttal 
 
had been reviewed but did not support a change to the board’s findings and recommendation.  He 
stated that the FPEB “is not bound by the U.S. Army Physical Disability Agency representative’s 

                                                 
2 The Board notes that the applicant also argued that the FPEB should have found two other medical conditions—
plantar  fasciitis  and  bilateral  shoulder  impingement—to  be  unfitting.    The  Board  has  omitted  the  evidence  and 
arguments  about  these  two  conditions  from  this  summary  because  the  applicant  limited  his  application  to 
challenging the FPEB’s rating of his back condition. 
3 The Board notes that the guidance for using a goniometer to measure ROM in the thoracolumbar spine currently on 
the  Army’s  website  states  that  the  evaluee  should  bend  forward  at  the  waist  to  touch  the  toes  and  includes  the 
drawing from Plate V of the VASRD. 

 

 

interpretation of Range of Motion (ROM) measurements, and it is wholly appropriate to include 
hip  flexion  when  computing  ROM.    Consequently,  member’s  ROM  measurement  and  recom-
mended level of disability remain unchanged.”   
 

On March 1, 2010, the applicant responded to  the president of the FPEB by stating that 
the FPEB’s position “is  directly contradictory to the guidance provided to VA examiners when 
assessing range of motion under the very regulation adopted by the Coast Guard.”  He noted that 
Senior Medical  Advisors to  both  the Army and  Navy had acknowledged that “hip  flexion is  to 
excluded from the calculation of range of motion in the thoracolumbar spine” and that the DVA 
required its physicians to exclude hip flexion when calculation ROM of the thoracolumbar spine.  
The applicant argued that the FPEB’s decision to deviate from the DVA’s rating criteria would 
be a violation of the NDAA of 2008.  The applicant included with his response a DVA Disability 
Examination Worksheet for “Spine Examination” downloaded on March 1, 2010,4 which states 
—“Provide forward  flexion  of the thoracolumbar spine as a unit.  Do not  include hip  flexion.”  
The DVA worksheet directs the practitioner to measure ROM in the thoracolumbar spine with a 
goniometer  while  the  evaluee  is  standing  but  provides  no  further  description  of  the  evaluee’s 
motion or the measurement to be taken. 
 
 
October 15, 2010, with a 20% disability rating and severance pay. 
   

The  FPEB’s  report  was  reviewed  and  approved,  and  the  applicant  was  discharged  on 

VIEWS OF THE COAST GUARD 

 
 
On June 26, 2012, the Judge Advocate General  (JAG) submitted an advisory opinion in 
which he recommended that the Board deny relief in this case.  In so doing, the JAG adopted the 
findings and analysis provided in a memorandum on the case prepared by the Personnel Service 
Center (PSC).  PSC stated that the applicant has misinterpreted the FPEB’s amplifying statement 
to mean that the FPEB  
 

… combined hip flexion and thoracolumbar flexion to achieve the 35 degrees of thoraco-
f. 
lumbar flexion.  However, this was not the case.  Rather, the FPEB remained resolute to follow the 
guidance  in  the  VASRD.    Moreover,  the  FPEB  declined  to  accept  the  assertion  of  [the  civilian 
physical  therapist]  that  flexion  of  the  thoracolumbar  spine  should  not  include  movement  of  the 
hips.  It was [the physical therapist] who was deviating from the VASRD in his attempt to divide 
out and exclude any movement of the hips.  In essence, in order to measure forward flexion of the 
thoracolumbar spine, [the physical therapist] would have a patient bend forward without pivoting 
at the waist.  This is not the movement contemplated by the VA in Plate V. … 
 
g. 
spine is [Plate V and the DVA Disability Examination Worksheet]. 
 
h. 
[The DVA Disability Examination Worksheet] states that the examiner is not to include 
hip flexion when measuring thoracolumbar flexion.  However, when viewed in light of the draw-
ing in Plate V …, it is clear that it was intended that the patient’s forward flexion would naturally 
involve the movement of the hip flexors.  What was to be excluded, as stated in the guidance of 

The  VA’s  only  guidance  on  how  to  measure  the  forward  flexion  of  the  thoracolumbar 

                                                 
4 See “Spine Examination,” available at http://www.vba.va.gov/bln/21/benefits/exams/disexm53a.pdf. 
 

 

 

[the  DVA  Disability  Examination  Worksheet]  is  that  separate  measurement  of  the  hip  flexion  is 
not to be taken and combined with the thoracolumbar flexion. 

 
 
PSC stated that the emails from the Army and Navy doctors “do not state what [the appli-
cant’s]  counsel  asserts  they  say”  and  their  opinions  “are  neither  instructive  nor  controlling” 
because the Armed Forces must follow the VASRD.  PSC further pointed out that the ROM “for 
thoracolumbar spine is 0 – 90 degrees.  In order to achieve the maximum of 90 degrees flexion, a 
person must pivot at the hips.  Plate V shows a demonstration of how the thoracolumbar meas-
urement is to be taken.  The diagram shows the patient pivoting at the hips, not above them.” 
 
 
The  JAG  also  noted  that  the  applicant’s  medical  records  show  that  his  military  doctor 
found  him  to  have  excellent  ROM  and  his  physical  therapist  found  him  to  have  normal  ROM 
until the last measurement on June 4, 2009, when he apparently measured the applicant’s ROM 
without allowing him to bend at the waist and so measured it at only 10 degrees.  The JAG noted 
that the military doctor also stated that he had observed the applicant sitting normally and getting 
in  and out  of a car normally, which motions  would  be very difficult  for someone with  only 10 
degrees  of  flexion.    The  doctor’s  measurements  showed  that  on  May  22,  2008,  the  applicant’s 
ROM  was  70  degrees  and  that  after  months  of  physical  therapy,  his  ROM  was  105  degrees  in 
February 2009, but the applicant apparently stopped doing the exercises. 
 
 
The JAG stated that in relying on the physical therapist’s 35-degree ROM measurement 
taken on July 2, 2009, the FPEB “gave [the applicant] the benefit of the doubt in concluding that 
his back was impaired at a 20% disability level,” although the FPEB could have used any of the 
earlier measurements, which would have justified a lower percentage rating. 
 
 
The  JAG  concluded  that  the  applicant’s  disability  was  “thoroughly  and  properly  evalu-
ated and adjudicated.  The determinations were logical, legal, and correct.  The FPEB’s findings 
were supported by law and consistent with the guidance of the VASRD.”  Therefore, he argued, 
the applicant has failed to prove by a preponderance of the evidence that his disability rating is 
erroneous or unjust. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On August 3, 2012, the applicant responded to the views of the Coast Guard.  He stated 
 
that his application “stands upon its own merits and is ready for decision.  The applicant further 
alleged  that  since  the  maximum  ROM  for  the  thoracolumbar  spine  is  90  degrees,  the  military 
doctor’s 105-degree measurement is physically impossible.  He again argued that “the plain lan-
guage  of  the  regulation  makes  it  clear  that  hip  flexion  in  any  form  is  not  to  be  included  when 
assessing range of motion  on forward flexion  of the thoracolumbar spine.”  Therefore, he said, 
the Board should grant relief.     

APPLICABLE REGULATIONS 

 

 
 
lumbar spine, including spinal fusion (code 5241):  
 

 

Under the VASRD, the following rating descriptions apply for disabilities of the thoraco-

 

 

 

Unfavorable ankylosis of the entire spine ………………………………………….………… 
Unfavorable ankylosis of the entire thoracolumbar spine………………………….…………. 
Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the 
entire thoracolumbar spine ……………………………………………………...……………. 
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than  
60 degrees ……………………………………………………………………………………. 
Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 
degrees ……………………………………………………………………………………… 

100% 
50% 

 

40% 
 
20% 
 
10% 

 
Note 2 to this table refers the reader to Plate V and states that “for VA compensation pur-
 
poses  …  [n]ormal  forward  flexion  of  the  thoracolumbar  spine  is  zero  to  90  degrees  ...  The 
normal ranges of motion for each component of spinal motion provided in this note are the maxi-
mum  that  can  be  used  for  calculation  of  the  combined  range  of  motion.”    Plate  V  includes  a 
drawing showing how to measure flexion of the thoracolumbar spine.  The drawing shows a man 
standing but bent over at the waist as if instructed to touch the floor.  A vertical line parallel to 
the man’s legs is marked as zero degrees and a horizontal line from the man’s waist to his shoul-
ders is marked 90 degrees. 
 
 
Guard’s PDES Manual. 

The  VASRD  table  of  ratings  and  Plate  V  are  reproduced  in  Enclosure  (1)  of  the  Coast 

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.  

The application was timely filed within three years of the applicant’s separation. 
 

2. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant 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.5   
 

3. 

The applicant alleged that his discharge with a 20% disability rating is erroneous 
and unjust and that he should have been retired with a 40% rating because in assessing his per-
centage of disability, the Coast Guard improperly included his hip flexion in measuring the ROM 
in  his  thoracolumbar spine.   The Board begins  its analysis in  every case  by presuming that the 
disputed information in the applicant’s military record is correct as it appears in his record, and 
the applicant bears the burden of proving by a preponderance of the evidence that the disputed 
information  is  erroneous  or  unjust.6    Absent  evidence  to  the  contrary,  the  Board  presumes  that 

                                                 
5 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”); Flute v. United States, 210 Ct. Cl. 
34,  40  (1976)  (“The  denial  of  a  hearing  before  the  BCMR  does  not  per  se  deprive  plaintiff  of  due  process.”); 
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). 
6 33 C.F.R. § 52.24(b).   

 

 

 
4. 

Coast Guard officials and other Government employees have carried out their duties “correctly, 
lawfully, and in good faith.”7  
 
 
The  Board  finds  that  the  preponderance  of  the  evidence  shows  that  the  FPEB 
properly followed both the VASRD and the Coast Guard’s identical regulations in Enclosure (1) 
of  the  PDES  Manual  in  finding  that  the  applicant  was  20%  disabled  as  a  result  of  his  spinal 
fusion.  Plate V in both the VASRD and Enclosure (1) of the PDES Manual clearly shows that to 
measure thoracolumbar flexion, the evaluee must stand and bend over at the waist, as if to touch 
the floor, and the  goniometer measures the  entire ROM—the angle—between a line parallel to 
the legs (approximately vertical) and a line extending from the waist to the shoulders.  Although 
not  controlling, the Army’s  guidance dated June 12, 2008, likewise instructs  the  practitioner to 
have the member stand and bend forward “naturally as if to touch the floor.  Follow the range of 
motion, keeping the goniometer arm along the mid-axillary line.  The goniometer base is to be 
kept in line with the femur [leg].  Record the angle that subtends the arc of motion.”  The posi-
tion of the evaluee and goniometer measurements described in these VASRD, Coast Guard, and 
Army  regulations  clearly  result  in  some  flexion  of  the  hips  being  measured  along  with  spinal 
flexion.    Bending  naturally  at  the  waist  to  touch the  floor—as  a  servicemember  on  active  duty 
may  need  to  do—normally  includes  motion  of  the  hips  and  cannot  be  done  at  a  90-degree 
angle—the  largest  ROM  mentioned  in  the  VASRD’s  rating  scale—without  motion  of  the  hips.  
The emails submitted by the applicant are too brief to be persuasive or dispositive of how thora-
columbar ROM is to be measured under the VASRD and, as explained below, his reliance on the 
DVA worksheet is misplaced.  The Board finds that the applicant has presented insufficient evi-
dence  to  prove  by  a  preponderance  of  the  evidence  that  the  Coast  Guard  failed  to  follow  the 
VASRD in assessing the applicant’s thoracolumbar ROM and disability rating.   
 

5. 

The applicant’s reliance on the DVA worksheet for “Spine Examination” is mis-
placed.    The  DVA  worksheet  explains  how  to  document  a  spine  examination  but  it  does  not 
describe either the motion to be made by the evaluee or how the measurement is to be taken with 
the  goniometer.    The  applicant  has  not  proved  that  the  wording  of  the  worksheet  contradicts, 
much less overrules, the procedure for measuring thoracolumbar ROM shown in Plate V of the 
VASRD.  In light of the picture in Plate V, the worksheet’s instruction—“Provide forward flex-
ion of the thoracolumbar spine as a unit.  Do not include hip flexion.”—appears to the Board to 
mean only that when documenting a member’s spinal flexion, the doctor does not also include a 
measurement of hip flexion because hip  flexion is documented separately in accordance with a 
different  DVA  worksheet,  “Joints  (Shoulder,  Elbow,  Wrist,  Hip,  Knee,  and  Ankle)  Examina-
tion.”8 
 

6. 

Accordingly,  the  Board  finds  that  the  applicant  has  not  proved  by  a  preponder-
ance of the evidence that his discharge with severance pay and a 20% disability rating is errone-
ous or unjust.  His request should be denied. 

 

                                                 
7 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
8  See  “Spine  Examination,”  available  at  http://www.vba.va.gov/bln/21/benefits/exams/disexm53a.pdf;  and  “Joints 
(Shoulder,  Elbow,  Wrist,  Hip,  Knee,  and  Ankle)  Examination,”  available  at  http://www.vba.va.gov/bln/21/ 
benefits/exams/disexm34.pdf. 

 

 

The application of  former xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

ORDER 

 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

  

 
 
Evan R. Franke 

 

 
Thomas H. Van Horn 

 

 
 

 
 
Barbara Walthers 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 

his military record is denied.