DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-069 
 
xxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The application was dock-
eted on April 21, 2003, upon receipt of the applicant’s completed application and mili-
tary and medical records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  December  18,  2003,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  former  xxxxxxxxxxxxxxxxxxxx,  asked  the  Board  to  correct  her 
record to show that she was medically retired from the Coast Guard on January 9, 2002, 
with  a  30%  combined  disability  rating,  including  a  10%  rating  for  neuritis  of  the  left 
external popliteal nerve and a 20% rating for lumbar spondylosis, in accordance with 
the Veterans’ Affairs Schedule for Rating Disabilities (VASRD). 
 

The applicant pointed out that on July 6, 1999, when she was placed on the Tem-
porary Disability Retired List (TDRL), she was assigned a 30% combined disability rat-
ing,  including  a  10%  rating  for  neuritis  of  the  left  external  popliteal  nerve  and  a  20% 
rating for lumbar spondylosis.   However, she alleged, on November 1, 2001, the Coast 
Guard’s  Formal  Physical  Evaluation  Board  (FPEB)  erroneously  rated  her  as  only  10% 
disabled  by  neuritis  and  0%  disabled  by  lumbar  spondylosis  even  though  there  had 
been no improvement in her condition and an MRI (magnetic resonance imaging) done 
in August 2001 had shown “degenerative disc changes and an annular tear of the disc at 
L4-5.”  She pointed out that the Central Physical Evaluation Board (CPEB) that evalu-

ated her while she was on the TDRL had noted that she suffered from foot drop, leg 
spasms, tenderness between the T10 and L5 vertebrae, back spasms, and an inability to 
walk  on  her  heels.  She  further  pointed  out  that  the  Department  of  Veterans’  Affairs 
(DVA) has found her to be “totally unemployable” and has rated her as 90% disabled.  

 
The applicant alleged that upon receiving the FPEB’s decision, she submitted an 
appeal  in  accordance  with  regulation,  but  never  received  a  response.    Moreover,  she 
alleged,  the  Coast  Guard  discharged  her  on  January  9,  2002,  without  notifying  her, 
which caused her to be without health insurance at a time when she was five months 
pregnant.  She alleged that she did not discover that she had been discharged until Feb-
ruary 7, 2002, when she called the Coast Guard’s Pay and Personnel Center to inquire 
about an unpaid travel claim and was told that there was a severance check waiting for 
her.  She was told that the check had not been delivered because they did not know her 
current address.  The applicant alleged, however, that she had previously provided her 
current address to Coast Guard Headquarters. 

 
The applicant alleged that it was erroneous and unjust for the FPEB to issue such 
a decision without explanation and for the appellate authority to fail to respond to her 
appeal.  She pointed out that the FPEBs and appellate authorities of every other United 
States military service provide written explanations for their decisions. 

 

 

SUMMARY OF THE RECORD 

On April 25, 1988, the applicant enlisted in the Coast Guard.  Her pre-enlistment 
physical examination showed that she was in good health.  Tests revealed that she had 
a heart condition, mitral valve prolapse, that was not considered disabling or disquali-
fying for enlistment.  Upon completing training on January 22, 1990, she became a xxxx 
xxxxxxxxxxxx.  

 
On September 19, 1994, while on a joint mission with the National Park Service, 
the  applicant’s  back  was  injured  when  the  vessel  she  was  on,  being  operated  at  full 
speed by a park ranger, lifted off the water and then returned to the water abruptly.  On 
December  8,  1994,  an  MRI  revealed  desiccation  of  the  L4-5  and  L5-S1  intervertebral 
discs and “central to right sided disc bulge” at L4-5. 

 
Throughout 1995, the applicant’s back condition was treated with physical ther-
apy.    According  to  medical  records,  her  symptoms  during  that  year  included  lower 
back  pain  and  spasms;  stiffness;  pain  upon  lateral  flexion;  spasms  and  pain  in  both 
buttocks; vertebral tenderness at the L5 vertebra; spasm in the right sacroiliac joint; hip 
strains; and a foot that “moderately flared to the right.”  

 

On April 11, 1995, the applicant’s command completed an incident report on her 
back injury.  The investigation concluded that the injury was incurred in the line of duty 
and noted that the applicant had not missed work because of the injury. 

 
On  November  10,  1995,  the  applicant’s  doctor  noted  that  she  had  lower  back 
pain, stiffness, and spasm, and he diagnosed her with intervertebral disk syndrome.  On 
November  22,  1995,  an  MRI  of  the  lumbar  spine  showed  “no  interval  change”  since 
December  1994.    On  December  12,  1995,  a  neurologist  reported  that  nerve  testing 
showed a “normal study.  No electrophysiologic evidence of a radiculopathy, [unread-
able]opathy, neuropathy, or myopathy.” 

 
 For  1996  and  1997,  only  three  documents  appear  in  the  applicant’s  medical 
record,  and  they  concern  a  pap  smear,  an  ingrown  toenail,  and  her  mitral  valve  pro-
lapse. 

 
On  February  17,  1998,  the  applicant  again  began  seeking  help  for  lower  back 
pain.  On April 6, 1998, she also sought help for increasing shoulder pain that she had 
experienced since falling onboard a cutter in October 1997.  The doctor diagnosed ten-
donitis, took xrays, and referred her for an orthopedic consultation.  

 
On  June  16,  1998,  the  applicant  was  examined  by  an  orthopedist,  who  recom-
mended that she be evaluated by a medical board to assess her fitness for duty.  Xrays 
showed “disc space narrowing at L4-5 with calcification [spondylosis] anteriorly in the 
disc space.” 

 
On June 18, 1998, an Initial Medical Board (IMB), which included the applicant’s 
orthopedist  as  a  member,  reported  that  she  suffered  from  lumbar  spondylosis  and  a 
laxity in the right shoulder as a result of a past injury.  The IMB reported that the appli-
cant had experienced “spontaneous subluxation and reduction of her right shoulder last 
week while sleeping.  The pain in the back is localized to the low back and there is no 
radicular component.  The low back pain is worse with extension of the lumbar spine.” 
The IMB found that she was “handicapped in that she is currently unable to run, jump, 
perform  activities  requiring  forced  waist  flexion,  lift  more  than  10  pounds,  climb,  or 
perform overhead work.”  The IMB recommended that she be assigned to limited duty 
ashore for eight months while undergoing orthopedic care and intensive physical ther-
apy  to  strengthen  her  shoulder.    In  light  of  the  IMB’s  recommendation,  the  applicant 
was transferred from her cutter and began physical therapy again. 

 
On  June  25,  1998,  the  applicant  acknowledged  the  IMB’s  findings  and  recom-
mendations and noted that she was still awaiting a neurological consultation that had 
been ordered on February 17, 1998.  The members of her IMB noted that they concurred 
with her statement.  On July 10, 1998, the recommendations of the IMB were approved 
by the applicant’s command, who forwarded them to the CPEB for further review. 

 
On August 10, 1998, an electromagnetogram (EMG) showed “left L5-S1 radicu-
lopathy.”  On September 9, 1998, an MRI of the applicant’s shoulder revealed no prob-
lems.  On September 28, 1998, an MRI of the applicant’s lumbar spine found degenera-
tive disk disease and a “diffusely bulging disk” at the L4-5 level and a “left paracentral 
disk protrusion, which compresses the thecal sac” at the L5-S1 level. 

 
On October 1, 1998, the Coast Guard Personnel Command (CGPC) reported that 
a CPEB had convened on September 29, 1998, to review the IMB report and had deter-
mined that there was insufficient evidence to make a final recommendation.  Therefore, 
CGPC asked the applicant’s command to convene a Disposition Medical Board (DMB) 
to report further on her condition and to provide a report from an orthopedic consulta-
tion by December 15, 1998. 

 

On December 1, 1998, the applicant’s orthopedist reported that she suffered from 
 

(1) lower back pain with muscle spasm, 
(2) a right shoulder impingement,  
(3) left leg muscle spasms and foot drop,  
(4) right thigh numbness, and  
(5) hip pain. 

 
On  December  7,  1998,  the  DMB,  which  included  the  applicant’s  orthopedist, 

reported to the CPEB that the applicant’s diagnoses included 

  

(1) lumbar spondylosis,  
(2) status post right shoulder injury, with resultant laxity,  
(3) left leg muscle spasm and occasional foot drop,  
(4) right thigh dysesthesia [numbness], 
(5) L5-S1 myelopathy,  and  
(6) bilateral hip pain.   

 
The  DMB  reported  that  her  physical  therapy,  chiropractic  treatment,  and  anti-
inflammatory medications had not provided “any significant relief.”  The DMB noted 
the results of the EMG and the MRI on September 28, 1998, and reported the following: 

 
Examination  of  the  right  shoulder  demonstrates  a  positive  impingement  and  moderate 
anterior and posterior translation.  Motor strength testing reveals external rotators, inter-
nal rotators, and supraspinatus are 5 over 5. … The lower extremity motor strength is 5 
over 5 in all muscle groups.  Sensation is intact to light touch in all dermatomes. … Lum-
bosacral flexion is limited, with the fingertips 6 inches from the floor.  There is full side-
bending and extension, which cause pain.  Range of motion of the hips is 0 to 120 degrees 
bilaterally, which 45 degrees of external rotation, 10 degrees of internal rotation (which is 
painful), and 45 degrees of abduction.   
 
The DMB concluded that the applicant was handicapped and could not perform 
the duties of her rating (xxxxxxxxxxxxx) and recommended that her case be referred to 
a CPEB “for final adjudication.”  On January 6, 1998, the applicant acknowledged the 
DMB’s report and indicated that she would not submit a rebuttal to the findings and 
recommendations. 

 
On  February  8,  1999,  the  applicant’s  commanding  officer  approved  the  DMB’s 
report and forwarded it to CGPC with a letter summarizing the history of her condition.  
He stated that the applicant was limited to performing desk work and required daily 
medication to tolerate her lower back pain.  He stated that she was unable to climb lad-
ders, bend or twist, or life objects over 2.5 pounds with her right arm.  He reported that 
she wore a back brace daily.  

 

On March 23, 1999, the CPEB reviewed the applicant’s case and recommended 

that she be discharged with a 20% combined disability rating, including a 

 
(1) 20% rating for “lumbar spondylosis analogous to lumbosacral strain,” under 

VASRD codes 5299/5295, and a 

(2) 0% rating for “right arm, limitation of motion of, major,” under VASRD code 

5201. 

 

On April 20, 1999, the applicant rejected the findings of the CPEB and demanded 

a hearing before the FPEB. 

 
On April 20, 1999, the applicant complained of increasing problems with her left 
foot drop.  The orthopedist noted that she had decreased strength in the foot and pre-
pared an addendum for the DMB report, in which he  stated that she had “functional 
footdrop secondary to L5-S1 radiculopathy” and that the weakness in her left foot was 
“profound  and  progressive.    It  limits  her  ability  to  ambulate.    She  has  difficulty  on 
uneven  surfaces,  sandy  soil,  stairs,  escalators,  and  with  any  ambulation  which  would 
require  active  dorsiflexion  of  the  left  foot  repeatedly.  …  She  continues  to  be  sympto-
matic on a daily basis with this problem.”  The orthopedist stated that she was unable to 
heel walk, which is a test for foot drop.  On April 27, 1999, the applicant acknowledged 
the addendum to the DMB and indicated that she would not submit a rebuttal. 

 
On May 5, 1999, an FPEB1 met to hear and review the applicant’s case.  It found 

her to be  

 
(1)  20%  disabled  by  “lumbar  spondylosis  analogous  to  lumbosacral  strain,” 

under VASRD codes 5299 and 5295; 

(2)  10% disabled  by “external popliteal nerve (common peroneal): paralysis of: 

incomplete: mild, left foot,” under VASRD code 8521; and 

(3)  0%  disabled  by  “right  arm,  limitation  of  motion  of,  major,”  under  VASRD 

code 5201. 

 

The  applicant’s  combined  disability  rating was  30%.    The  FPEB  found  that  her 
conditions might be permanent and recommended that she be placed on the TDRL.  On 
May  6,  1999,  after  receiving  advice  from  counsel,  the  applicant  accepted  the  FPEB’s 
findings  and  recommendation.    On  May  18,  1999,  the  decision  of  the  FPEB  was 
approved.  On May 19, 1999, CGPC ordered that the applicant be placed on the TDRL 
with a 30% disability rating as of July 6, 1999.   

 

                                                 
1  On December 17, 2003, CGPC informed the BCMR that neither a tape recording nor a transcript of the 
FPEB could be found. 

On  July  5,  1999,  the  applicant  was  temporarily  retired  because  of  her  physical 

disability.  She was placed on the TDRL effective July 6, 1999. 

 
Also on July 6, 1999, the applicant applied to the DVA for disability benefits.  On 
November 17, 1999, the DVA completed its examination and review and awarded her a 
70% combined disability rating, including a 

 
(1) 60% rating for spondylosis of the lumbar spine with L5 fracture, L4 herniated 
nucleus  pulposus  [disc],  L3  herniated  nucleus  pulposus,  and  left  foot  drop, 
under VASRD codes 5285-5293; 

(2) 10%  rating  for  residuals  of  status  post  right  shoulder  under  VASRD  codes 

5202-5019; and 

(3) 10% rating for dysthymic disorder [depression]. 
 
The DVA found that a 60% disability rating for her back condition and foot drop 
was appropriate because the applicant had “pronounced intervertebral disc syndrome 
with  persistent  symptoms  compatible  with  sciatic  neuropathy,  characteristic  pain  and 
demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropri-
ate to site of diseased disc and little intermittent relief.”  Since there is no VASRD code 
for this condition, the DVA used analogous codes 5285-5293. 

 
The DVA found that the applicant was 10% disabled by her right shoulder con-
dition because it constituted a “painful or limited motion of a major joint” and 10% dis-
abled  by  dysthymic  disorder  because  she  had  mild  or  transient  symptoms  that 
decreased her work efficiency and ability to perform occupational tasks during periods 
of stress or that were controlled by medication.  The DVA deferred its findings on sev-
eral  of  the  applicant’s  medical  problems  because  of  a  lack  of  recent  evidence.    Other 
conditions were found to be service-connected but not disabling.   

 
Following further medical examinations of the applicant’s various conditions, on 
January 26, 2000, the DVA amended its decision, raising her combined disability rating 
to 80% based on service-connected disabilities not at issue in this case.  In addition, the 
DVA found that she met the requirements for “individual unemployability” and so was 
entitled to disability pay for a 100% rating. 

 
On August 7, 2001, the applicant underwent a periodic examination at the naval 
hospital to asses her status.  The doctor recommended that the applicant be kept on the 
TDRL, and he reported the following: 

 
[The applicant] reports no interval change in the symptoms related to her right shoulder 
and  left  and  right  legs  since  her  Physical  Evaluation  Board  in  December  1998.   Specifi-
cally, with regard to the shoulder, she complains of pain primarily with overhead activi-
ties and notes episodes of subluxation, of the shoulder coming in and out, that she is able 
to control on her own.  She is not doing any formal physical therapy, but does work on 

strengthening exercises for the shoulder.  With regards to her lower extremities, she notes 
that she continues to have the footdrop on the left.  She notes that this has caused her to 
fall on occasion.  She is working on trying to strengthen her evertors and ankle dorsiflex-
ors and plantar flexors.  She notes that she has continued decreased sensation on the lat-
eral border of her left foot and also a sensation  of pins and needles  over the right pos-
terolateral  aspect  of  the  thigh  and  gluteal  region.  …  Her  medications  on  this  visit  are 
Motrin, Flexeril, Naprosyn on an as needed daily basis. 

 

… The right shoulder was notable for forward flexion of 160 degrees, external rotation of 
60 degrees, and internal rotation to the sacrum.  She was noted to have increased transla-
tion  in  both  an  anterior  and  posterior  direction  with  a  1  plus  focus,  consistent  with 
multidirectional  instability.    She  was  also  noted  to  have  positive  Hawkins  and  Neer 
impingement  signs.    She  was,  distally,  neurovascularly  intact  in  the  upper  extremities 
and her motor strength was 5 out of 5.  Her back exam was notable for forward flexion to 
the  midtibia,  with  full  extension,  rotation,  and  bending.    She  was  tender  to  palpation 
from approximately T-10 to L-5.  She was noted to have dysesthesias to light touch over 
the proximal lateral aspect of the right thigh and gluteal region.  Motor strength of bilat-
eral  lower  extremities  was  5  out  of  5  with  the  exception  of  the  left  peroneals,  extensor 
hallucis longus, and ankle dorsiflexors, which were graded as 4 out of 5.  Sensation was 
decreased to light touch in an  S-1 distribution on the left foot.  She had a negative sitting 
straight leg raise.  She was able to walk on her toes, but could not walk on her heels. 

 

The patient’s present condition is summarized as follow:  1) right shoulder impingement 
syndrome and multidirectional instability; 2) right hip dysesthesias; 3) lumbar spondylo-
sis; and 4) L5-S1 myelopathy, affecting left lower extremity.  The patient is limited in that 
she cannot use her right upper extremity for heavy lifting or activities that require her to 
raise  her  arm  above  the  level  of  her  head.    She  is  limited  in  regards  to  her  footdrop 
because this causes her to trip on occasion and she is unable to run or walk on uneven 
surfaces.  She also continues to get muscle spasms in both legs.  
 
The results of an EMG completed on August 7, 2001, showed “no electrophysi-
ological evidence of an acute or severe chronic left lumbar radiculopathy.  Mild chronic 
muscle denervation, typically detected on EMG exam with volitional effort, is unable to 
be assessed secondary to [the patient’s] inability to exert force with indwelling mono-
polar needle.”   

 
The results of the MRI completed on August 7, 2001, showed “[d]isc space nar-
rowing  and  disc  desiccation  is  greatest  at  the  L4-5  level  followed  by  L5-S1.    There  is 
pseudodisc formation noted at the first sacral element.  Vertebral body marrow signal is 
normal. … L4-5 shows a small central annular tear posteriorly in the midline without 
evidence of disc protrusion or extrusion.  There is no evidence of central canal stenosis.  
The neural foramen are patent. …  L5-S1:  Broad base disc bulge is seen.  There is mild 
central protrusion and bulge of the disc to the left of midline.  There is no evidence of 
central canal stenosis  or neural foraminal narrowing.”  The diagnosis was “degenera-
tive disc changes at L4-5 and L5-S1 with annular tear of the disc at L4-5.” 

 
On September 6, 2001, the CPEB met to review the applicant’s case and recom-

mended that she be discharged with a 20% combined disability rating, including 

 
(1)  10%  for  “lumbosacral  strain:  with  characteristic  pain  on  motion,”  under 

VASRD code 5295; and  

(2)  10% for “neuritis, left external popliteal nerve, rated as paralysis of, incom-

plete, mild,” under VASRD code 8621-8521. 

 
On October 2, 2001, the applicant rejected the findings of the CPEB and demand-

ed a hearing before the FPEB. 

 
On October 29, 2001, a housemate of the applicant wrote a letter to the FPEB and 
stated that the applicant frequently suffers extreme pain after attempting activities such 
as painting or unpacking a box and sometimes gets such pain for no apparent reason.  
The housemate also stated that the applicant could not lift things or exercise and that 
she once fell in the driveway when her foot gave way. 

 
In an undated addendum to his report of August 7, 2001, the doctor wrote that 
the “patient states she continues to experience bilateral hip pain, with intermittent left 
leg  and  low  back  muscle  spasms.”    However,  he  noted  that  she  had  a  full  range  of 
motion in her hips. 

 
On November 1, 2001, an FPEB was convened to hear the applicant’s case.2  The 
FPEB  recommended  that  she  be  discharged  with  a  10%  combined  disability  rating, 
including a 

 
(1) 0% rating for “spondylosis analogous to lumbosacral strain: with slight sub-

jective symptoms only,” under VASRD code 5299/5295; and a 

(2) 10%  rating  for  “neuritis,  left  external  popliteal  nerve,  rated  as  paralysis  of, 

incomplete, mild,” under VASRD code 8621-8521.   

 
On November 14, 2001, the applicant faxed a rebuttal to the FPEB regarding its 
decision to rate her lumbar spondylosis as 0% disabling.  She pointed out that the doc-
tor  who  examined  her  on  August  7,  2001,  had  recommended  that  she  remain  on  the 
TDRL.  In addition, she pointed out that the doctor had found her back “tender to pal-
pation”  and that she had “paravertebral spasms.”  She summarized her back condition 
as “degenerative disc disease [with] a neurological implication, to include drop foot, leg 
spasms, and right thigh dysesthesias.  There is also lumbosacral strain with attendant 
pain  and  paravertebral  spasms.”    In  addition,  she  alleged  that  at  the  FPEB  hearing  it 
was apparent that the board members had not reviewed her case prior to the hearing. 

 

                                                 
2 On December 17, 2003, CGPC informed the BCMR that neither a tape recording nor a transcript of the 
FPEB could be found. 

Although  CGPC  received  the  applicant’s  rebuttal  and  placed  it  in  her  PDES 
record, the place on the FPEB report form where receipt of the rebuttal would have been 
noted is blank, and the FPEB never responded to the rebuttal, as required by Chapter 
5.D.2.c. of the Physical Disability Evaluation System (PDES) Manual. 

 
On December 7, 2001, a one-officer Physical Review Counsel (PRC) concurred in 
the FPEB’s recommendation.  On December 13, 2001, the Chief Counsel found the pro-
ceedings to be technically correct.  On December 21, 2001, the final approving authority 
approved  the  recommendation  of  the  FPEB  and  ordered  that  the  applicant  be  dis-
charged with severance pay. 

 
On  January  7,  2002,  as  a  result  of  recent  examinations,  the  DVA  increased  the 
applicant’s rating for dysthymic disorder to 30% effective as of October 26, 2001, and 
increased  the  rating  for  her  shoulder  condition  to  20%  effective  as  of  August  7,  2001.  
These  ratings,  when  combined  with  the  60%  rating  for  her  back  condition  and  foot 
dropsy  and  her  10%  rating  for  residuals  status  post  condylectomies,  produced  a  total 
combined disability rating of 90%.  She still qualified for “individual unemployability.” 

 
On  January  9,  2002,  the  applicant  was  discharged  from  the  service  with  a  10% 
disability rating and $53,182.80 in severance pay.  However, her notice of discharge was 
apparently mailed to the wrong address. 

 
The applicant also submitted copies of the reports of MRIs done this past year.  
On  February  19,  2003,  tests  revealed  “possible  spasm”  secondary  to  “degenerative 
change in the posterior facet joints at L5-S1.  The disc spaces are maintained except for 
mild narrowing of the L4-5 interspace.”  On May 22, 2003, tests revealed “mild central 
canal stenosis and biforaminal narrowing” where the L4-5 disc was bulging.  
 

VIEWS OF THE COAST GUARD 

 

On August 22, 2003, the Chief Counsel of the Coast Guard submitted an advisory 
opinion in which he recommended that the Board grant partial relief by correcting the 
applicant’s  disability  rating  for  lumbar  spondylosis  from  0%  to  10%,  for  a  combined 
20% disability rating.  He based his recommendation in part on a memorandum on the 
case prepared by CGPC, which is summarized below.   

 

CGPC’s Memorandum 
 
 
CGPC alleged that there were “no substantive violations of the established rules 
governing the PDES process committed by the CPEB or FPEB that deprived the appli-
cant  any  of  her  rights  or  due  process.”    CGPC  alleged  that  the  fact  that,  at  the  FPEB 
hearing, the board members questioned the applicant and her attorney about her medi-

cal  history  “was  not  prohibited  by  law  or  regulation  and  did  not  deprive  her  of  any 
substantial rights or result in unfair prejudice during the hearing process.”   
 

CGPC  stated  that,  although  the  record  contains  no  evidence  that  the  applicant 
was notified of the receipt of her rebuttal, the fact that the PRC did not sign off on her 
case until December 7, 2001, indicates that there was ample time for her rebuttal to be 
considered.    CGPC  alleged  that  when  questioned  about  the  case,  the  PRC  stated  that 
although  he  could  not  recall  the  specifics  of  the  applicant’s  case,  he  is  certain  that  he 
would have noticed if her rebuttal was missing because of the process he uses to review 
FPEB decisions.3 

 
CGPC stated that the failure of the CPEB and the FPEB to provide an amplifying 
statement explaining their decisions, in accordance with Chapter 2.C.3.a.(3)(d), was not 
erroneous  since  the  regulation  leaves  the  determination  of  whether  an  amplifying 
statement is needed to the discretion of the boards.  CGPC stated that placement on the 
TDRL does not guarantee a member a disability retirement.  CGPC likened the TDRL to 
a  “pending  list”  that  “provides  a  safeguard  to  the  Government  against  permanently 
retiring  members  who  may  later  fully,  or  partially,  recover  from  the  disabling  condi-
tion.”  CGPC stated that the TDRL also protects members from being separated with a 
low disability rating when their conditions are unstable and could worsen.   

 
CGPC argued that the DVA’s decision to rate the applicant’s back and foot con-
dition as 60% disabling is not determinative of the issue before the BCMR because the 
DVA  and  military  evaluation  systems  serve  different  purposes.    The  DVA  evaluates 
veterans based on their civilian employability, whereas under the PDES, disability rat-
ings are based on “the extent that the unfitting medical condition or conditions prevent 
the  member  from  performing  their  [sic]  duties.”    Therefore,  CGPC  argued  that  com-
paring the disparate ratings is like “comparing apples and oranges.” 

 
CGPC stated that the officer who presided over the applicant’s CPEB in 2001 has 
again  reviewed  the  case  and  stated  that  the  highest  disability  rating  she  could  have 
received  for  lumbar  spondylosis  analogous  to  lumbosacral  strain  is  10%.    Therefore, 
CGPC recommended that the BCMR increase the applicant’s disability rating for lum-
bar spondylosis to 10%, for a combined rating of 20%. 

 
CGPC  argued  that  it  was  appropriate  for  the  CPEB  not  to  consider  the  appli-
cant’s shoulder condition “because she had accepted their earlier finding of 0% disabil-
ity for this at her 1999 PEB.” 

 

Chief Counsel’s Advisory Opinion 
 

                                                 
3  No copy of the PRC’s statement was provided to the BCMR. 

 
The Chief Counsel argued that the applicant submitted “no persuasive evidence 
that the [PDES] erred in rating her disability [at] less than 30%.  He argued that under 
Lord v. United States, 2 Ct. Cl. 749, 754 (1983), the DVA’s higher rating does not prove 
that the Coast Guard erred in rating “the extent [the applicant] has been rendered unfit 
to perform the duties of [her] office, grade, or rating because of [her] physical disabil-
ity.”  The Chief Counsel argued that “any long-term diminution in the applicant’s  earn-
ing capacity attributable to [her] military service is properly a matter from the DVA, not 
the Coast Guard or the BCMR.” 
 
 
The  Chief  Counsel  argued  that  “[a]bsent  a  strong  showing  of  evidence  to  the 
contrary, it is presumed that Coast Guard officials carried out their official duties law-
fully, correctly, and in good faith.”  Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 
1990); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  However, he stated that, 
“even though Applicant has failed to show, by a preponderance of the evidence, that 
the  Coast  Guard  committed  an  error  or  injustice  in  rating  her  disability,  the  Coast 
Guard undertook another review of her medical record.  That review supports changing 
Applicant’s  disability  rating  for  Spondylosis  analogous  to  lumbosacral  strain  (with 
characteristic  pain  on  motion)  from  0%  to  10%.    In  the  interests  of  justice,  the  Coast 
Guard is proposing that the Board grant Applicant that partial relief.” 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On September 8, 2003, the BCMR sent the applicant a copy of the Chief Counsel’s 
advisory opinion and invited her to respond within 30 days.  The applicant responded 
on November 7, 2003.   

 
The applicant argued that if her spondylosis had to be rated by analogy to lum-
bosacral strain, it should be rated as 20% disabling because of her paravertebral spasms.  
She  stated,  however,  that  “[i]f  DDD  [degenerative  disc  disease]  or  DJD  [degenerative 
joint disease] is the proper analogy, then 40% is the minimum due to the neurological 
residuals to include drop foot.” 

 
The applicant argued that “[n]either [VASRD code] 5295 at 10%, nor 5293 unrec-
ognized is a proper result in light of the irrefutable clinical evidence which includes L5-
S1 myelopathy, affecting left lower extremity.” 
 

SUMMARY OF APPLICABLE LAW 

 
Disability Statutes 
 
 
Title 10 U.S.C. § 1201 provides that a member who is found to be “unfit to per-
form the duties of the member’s office, grade, rank, or rating because of physical dis-
ability incurred while entitled to basic pay” may be retired if the disability is (1) perma-
nent and stable, (2) not a result of misconduct, and (3) for members with less than 20 
years of service, “at least 30 percent under the standard schedule of rating disabilities in 
use by the Department of Veterans Affairs at the time of the determination.”  Title 10 
U.S.C.  § 1203  provides  that  such  a  member  whose  disability  is  rated  at  only  10  or  20 
percent  under  the  VASRD  shall  be  discharged  with  severance  pay.    Title  10  U.S.C. 
§ 1214  states  that  “[n]o  member  of  the  armed  forces  may  be  retired  or  separated  for 
physical disability without a full and fair hearing if he demands it.” 
 
Veterans Affairs Schedule for Rating Disabilities (38 C.F.R. Part 4) 
 
 
 

There is no VASRD code specifically for lumbar spondylosis. 

VASRD code 5293 is for intervertebral disc syndrome. Possible ratings are 60% 
for “[p]ronounced: with persistent symptoms compatible with sciatic neuropathy with 
characteristic pain and demonstrable muscle spasm,  absent ankle jerk or other neuro-
logical findings appropriate to the site of diseased disc, little intermittent relief”; 40% for 
severe:  recurring  attacks  with  intermittent  relief;  20%  for  moderate:  recurring  attacks; 
10% for mild; and 0% for posteroperative, cured.  [Emphasis added.] 
 

VASRD  code  5295  is  for  lumbosacral  strain.  Possible  ratings  are  40%  for 
“[s]evere:  with  listing  of  whole  spine  to  opposite  side,  positive  Goldthwaite’s  sign, 
marked  limitation  on  bending  in  standing  position,  loss  of  lateral  motion  with  osteo-
arthritic changes”; 20% for “muscle spasm on extreme forward bending, loss of lateral 
spine  motion,  unilateral,  in  standing  position”;  10%  “with  characteristic  pain  on 
motion”; and 0% “with slight subjective symptoms only.” 

 
VASRD code 8521 is for paralysis of the external popliteal nerve.  Possible ratings 
are 40% for “[c]omplete: foot drop and slight droop of first phalanges of all toes, cannot 
dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduc-
tion  of  foot  lost,  adduction  weakened;  anesthesia  covers  entire  dorsum  of  foot  and 
toes”; 30% for incomplete but “severe”; 20% for “moderate”; and 10% for mild. 

 
Title 38 C.F.R. § 4.14, titled “Avoidance of Pyramiding,” states that the “evalua-

tion of the same disability under various diagnoses is to be avoided.” 
 

Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
Article 3.F. of the Medical Manual provides that members  with  medical  condi-
tions that “are normally disqualifying” for retention in the Service shall be referred to 
an IMB by their commands.  Article 3.F.1.c. of the Medical Manual states the following: 

 
Fitness  for  Duty.    Members  are  ordinarily  considered  fit  for  duty  unless  they  have  a 
physical  impairment  (or  impairments)  which  interferes  with  the  performance  of  the 
duties of their grade or rating.  A determination of fitness or unfitness depends upon the 
individual’s ability to reasonably perform those duties.  Members considered temporar-
ily or permanently unfit for duty shall be referred to an Initial Medical Board for appro-
priate disposition. 

 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
 
The PDES Manual governs the separation of members due to physical disability.  
Chapter 3 provides that an IMB of two medical officers shall conduct a thorough medi-
cal  examination,  review  all  available  records,  and  issue  a  report  with  a  narrative 
description  of  the  member’s  impairments,  an  opinion  as  to  the  member’s  fitness  for 
duty and potential for further military service, and if the member is found unfit, a refer-
ral  to  a  CPEB.    The  member  is  advised  about  the  PDES  and  permitted  to  submit  a 
response to the IMB report.   
 
 
Chapter 4 provides that a CPEB, composed of at least one senior commissioned 
officer and one medical officer (not members of the IMB), shall review the IMB report, 
the CO’s endorsement, and the member’s medical records.  Chapter 4.A.5.7. provides 
that if the CPEB finds that the evidence is insufficient for a proper determination, it will 
return the case to the member’s command for a DMB to amplify the record.   
 
 
Chapter 2.C.2.a. provides that the “sole standard” that a CPEB or FPEB may use 
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 dis-
ease or injury incurred or aggravated through military service.” 
 

Chapter  2.C.10.a.(2)  provides  that  the  CPEB  or  FPEB  will  consider  a  medical 
condition  to  be  “permanent”  when  “[a]ccepted  medical  principles  indicate  the  defect 
has stabilized to the degree necessary to assess the permanent degree of severity or per-
centage rating” or if the “compensable percentage rating can reasonably be expected to 
remain unchanged for the statutory five year period that the evaluee can be compen-
sated while on the TDRL.”  Under Chapter 8, if the CPEB (or the FPEB) determines that 
a member is unfit for duty and the condition may not be permanent but is at least tem-
porarily greater than 30 percent, the member may be placed on the temporary disability 
retired list (TDRL) for a maximum of five years.  Chapter 8.A.2.  provides that the TDRL 
“safeguards members from being permanently retired with a condition that is not stable 

and could result in a higher disability rating.”  While on the TDRL, a member’s case is 
periodically reviewed by the CPEB to determine if his condition has stabilized so that a 
permanent rating may be assigned (or he may be found fit for duty if he recovers). 

 
Chapter 2.C.3.a.(3)(a)  provides that, if a CPEB (or subsequently an FPEB) finds 

that the member is unfit for duty because of a permanent disability, it will  

 
propose ratings for those disabilities which are themselves physically unfitting or which 
relate to or contribute to the condition(s) that cause the evaluee to be unfit for continued 
duty.  The board shall not rate an impairment that does not contribute to the condition of 
unfitness or cause the evaluee to be unfit for duty along  with another condition that is 
determined  to  be  disqualifying  in  arriving  at  the  rated  degree  of  incapacity  incident  to 
retirement  form  military  service  for  disability.    In  making  this  professional  judgment, 
board members will only rate those disabilities which make an evaluee unfit for military 
service or which contribute to his or her inability to perform military duty.  In accordance 
with the current VASRD, the percentage of disability existing at the time of evaluation, 
the code number and diagnostic nomenclature for each disability and the combined per-
centage of disability will be provided. 

Chapter  2.C.3.a.(3)(a)1.  states  that  “[w]hen  rating  a  condition  which  does  not 

 
 
appear in the VASRD, the board shall rate by analogy.”   
 

Chapter 2.C.3.d., entitled “Amplifying Statements,” states that “[w]hen the basis 
for  its  findings  and  recommended  disposition  is  not  readily  apparent  from  the  docu-
ments of record, as in the case of a disability percentage award varying from the norm-
al, or when the true physical condition of the evaluee is not adequately reflected by the 
VASRD, the board [a CPEB or FPEB] will prepare an amplifying statement, setting forth 
the basis for its findings and recommended disposition.” 
 
 
Chapter  4.A.14.c.  provides  that  the  member  has  the  right  to  reject  the  CPEB’s 
recommendation  and  demand  a  formal  hearing  by  the  FPEB  in  accordance  with  10 
U.S.C.  § 1214.    Under Chapter  4.A.14.d. the member  must  reject  or  accept  the  CPEB’s 
“offer” within 15 days of notification by the legal counsel. 
 
 
Chapter 5.A.4. provides that an FPEB convened under 10 U.S.C. § 1214 normally 
consists  of  three  officers,  one  of  whom  is  a  medical  officer  and  none  of  whom  have 
served  on  the  member’s  CPEB.    Chapter  5.C.11.a.  provides  that  the  FPEB  shall  issue 
findings and a recommended disposition of each case in accordance with the provisions 
of  Chapter  2.C.3.a.  (see  above).    The  applicant  has  three  days  in  which  to  decide 
whether to file a rebuttal and 15 working days in which to file the rebuttal.  The rebuttal 
“may  include  substantial  existing  evidence,  which  by  due  diligence,  could  not  have 
been presented before disposition of the case by the FPEB.”  Chapter 5.D.2.c. provides 
that the FPEB will inform the member or his counsel, normally within 15 working days, 
whether the rebuttal supports a change in the FPEB’s determinations.  If the FPEB con-
curs in the rebuttal, it prepares a new report in accordance with Chapter 2.C.3.a. 

 
 
Chapter 6.B.1. provides that whenever a member rebuts the recommended dis-
position of the FPEB, a PRC composed of one commissioned officer in pay grade O-5 or 
above will review the entire case, to “check for completeness and accuracy, and ensure 
consistency  and  equitable  application  of  policy  and  regulation.”    Chapter  6.B.2.  pro-
vides that the reviewing officer will not modify the findings and recommended disposi-
tion of the FPEB unless they are clearly erroneous.  Chapter 6.B.3. provides that the offi-
cer  must  concur  with  the  FPEB  unless  it  has  assigned  the  wrong  VASRD  codes, 
pyramided  the  impairments,  applied  an  “[i]ncorrect  percentage  of  disability  to  the 
VASRD  descriptive  diagnosis/code(s),  or  was  arbitrary  and  capricious  or  abused  its 
discretion  in  making  its  determinations.    If  the  officer  finds  such  an  error,  he  shall 
return  the  case  to  the  FPEB  for  reconsideration.”    Chapter  6.B.6.  allows  a  member  to 
submit new evidence or any pertinent information in writing to the PRC officer. 
 
 
Chapter  1.B.4.  provides  that  the  Chief  Counsel  will  review  the  actions  of  the 
CPEB, FPEB, and PRC to ensure legal sufficiency.  If no legal insufficiency is found, the 
Chief Counsel forwards the case to the Chief of the Administrative Division of CGPC 
for final action.   
 
 
 

Chapter 9.A.1. states the following: 

Where there is a reasonable doubt as to which of two percentage evaluations should be 
applied,  the  higher  evaluation  will  be  assigned  if  the  disability  picture  more  nearly 
approximates  the  criteria  for  that  rating.    Otherwise,  the  lower  rating  will  be  assigned.  
When, after careful consideration of all reasonably procurable and assembled data, there 
remains  reasonable  doubt  as  to  which  rating  should  be  applied,  such  doubt  shall  be 
resolved in favor of the member, and the higher rating assigned. 

 
 
Chapter 9.A.8. provides that if “a medical condition which causes or contributes 
to unfitness for military service is of such mild degree that it does not meet the criteria 
even  for  the  lowest  rating  provided  in  the  VASRD  …  [a]  zero  percent  rating  may  be 
applied in such cases.” 
 

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 appli-
cable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.  The application was timely. 

 

2. 

The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 

 
3. 

The applicant alleged that she should have been retained on the TDRL in 
accordance  with  the  recommendation  of  the  doctor  who  examined  her  on  August  7, 
2001.  Under Chapter 2.C.10.a.(2) of the PDES Manual, a member may be removed from 
the  TDRL  when  her  medical  condition  is  determined  to  be  “permanent”  in  that  it  is 
clear that she will not become fit for duty and when (a) “[a]ccepted medical principles 
indicate the defect has stabilized to the degree necessary to assess the permanent degree 
of severity or percentage rating” or (b) the “compensable percentage rating can reason-
ably be expected to remain unchanged for the statutory five year period that the eval-
uee can be compensated while on the TDRL.”  Although the doctor who examined her 
recommended  her  retention  on the  TDRL,  the  applicant  has  not proved  by  a  prepon-
derance of the evidence that the FPEB acted unreasonably or erroneously in deciding in 
2001 that her condition met this definition of “permanent.”  The fact that the examining 
physician disagreed with the decision to remove her from the TDRL does not prove that 
the FPEB erred in its recommendation.  The doctor’s report did not mention any expec-
tation of significant changes in the applicant’s condition prior to July 5, 2004, the end of 
the maximum five-year period that she could have remained on the TDRL.  

 
4. 

The applicant alleged that the FPEB erred by rating her lumbar spondylo-
sis as 0% disabling, instead of at least 20% disabling.  She alleged that the necessity of 
using analogous VASRD codes to rate her lumbar spondylosis contributed to the erro-
neous rating.  There is no VASRD code for lumbar spondylosis, so the FPEB was forced 
to  choose  an  analogous  code.    The  DVA  chose  to  rate  her  back  and  foot  conditions 
together and to analogize her condition to code 5293, for intervertebral disc syndrome.  
However,  the  definition  for  code  5293  does  not  include  back  conditions  with  “neuro-
logical findings appropriate to site of diseased disc,” such as the applicant’s footdrop.  
The applicant has not proved that the FPEB erred by rating her neurological condition 
separately and analogizing her lumbar spondylosis to lumbosacral strain.4 

 
5. 

The applicant alleged that the FPEB erred in evaluating her lumbar spon-
dylosis as 0% disabling, instead of at least 20% disabling.  She alleged that her 60% rat-
ing for her back condition by the DVA and the addendum to the doctor’s report noting 
that she had reported back spasms prove that she met the criteria for at least a 20% rat-
ing.  Because the DVA’s 60% rating covers both her lumbar spondylosis and her foot-
drop, the exact rating the DVA would ascribe to her back condition alone is unknown.  
Moreover, as the Chief Counsel stated, a higher DVA rating, based on her employability 
or lack thereof, does not prove that the Coast Guard erred in assessing her back condi-
                                                 
4  The Board notes that when a member’s back condition has been operated on, her residual condition is 
rated  under  VASRD  code  5295  for  lumbosacral  strain  and  “the  relevant  code  for  neurological 
impairment.”  See DOD Instruction 1332.39, Para. E2.A1.1.19.6. 

tion’s  impact  on  her  fitness  to  perform  the  duties  of  her  rating,  in  accordance  with 
Chapter 2.C.2.a. of the PDES Manual. See Lord v. United States, 2 Ct. Cl. 749, 754 (1983).   

 
6. 

In his addendum to his report on the applicant’s August 7, 2001, physical 
examination,  the  doctor  wrote  that  the  applicant  herself  had  reported  having  back 
spasms.  He did not state that he witnessed any back spasms during testing or that she 
reported  having  chronic  back  spasms.5    In  addition,  the  doctor  mentioned  that  there 
had been “no interval change in the symptoms related to her right shoulder and left and 
right legs,” which leaves open the issue of whether her back condition had improved or 
worsened  since  1999.    Although  the  applicant  was  found  to  suffer  from  back  spasms 
prior to her placement on the TDRL in 1999 and testing showed “possible spasms” in 
2003, two years after her discharge, such evidence does not prove that upon examina-
tion in 2001 she suffered from “muscle spasm on extreme forward bending, loss of lat-
eral spine motion, unilateral, in standing position,” as required for a 20% rating under 
VASRD code 5295.6  In fact, the doctor noted that “[h]er back exam was notable for for-
ward flexion to the midtibia, with full extension, rotation, and bending,” without noting 
any complaint of pain upon extension, and in the addendum he noted that she had a 
full range of motion in her hips.  Therefore, the Board finds that the applicant has not 
proved that the Coast Guard erred in not assigning her at least a 20% disability rating 
for her back condition. 

 
7. 

The  applicant  alleged  that  it  was  erroneous  and  unjust  for  the  FPEB  to 
issue its decision without explanation.  She argued that the FPEB should have prepared 
an  “amplifying  statement”  in  accordance  with  Chapter  2.C.3.d.  of  the  PDES  manual.  
The  Coast  Guard  argued  that  the  decision  to  issue  such  a  statement  falls  completely 
within the discretion of the FPEB.  However, Chapter 2.C.3.d. states that the FPEB will 
prepare an amplifying statement “[w]hen the basis for its findings and recommended 
disposition is not readily apparent from the documents of record.”  Although the FPEB 
differed from the CPEB in assessing the applicant’s back condition, the Board finds that 
the  lack  of  evidence  that  the  applicant  experienced  pain  on  motion  during  her  back 
examination on August 7, 2001, provided a sufficient and readily apparent basis for the 
FPEB’s  assignment  of  a  0%  rating  for  lumbar  spondylosis  analogous  to  lumbosacral 
strain. 
 
8. 

The applicant alleged  that the FPEB never  saw her rebuttal.   The  record 
shows that the rebuttal was timely faxed to the FPEB on November 14, 2001, and placed 

                                                 
5 DOD Instruction 1332.39, which is used by the Coast Guard as guidance in rating disabilities, though it 
is not legally binding, provides that a 20% rating under VASRD code 5295 is appropriate for lumbosacral 
strain  if  “paravertebral  muscle  spasms  [are]  chronic  and  evident  on  repeated  examinations.”    Para. 
E2.A1.1.20.2. 
6 The Board notes that the applicant’s medical record lacks evidence of any back pain complaints by the 
applicant  for  the  two-year  period  from  January  1996  to  February  1998,  which  suggests  that  her  back 
condition might fluctuate. 

in her PDES record.  However, the receipt of the rebuttal was never noted on the FPEB’s 
report  form,  and  no  response  was  ever  sent  to  the  applicant,  as  required  by  Chapter 
5.D.2.c. of the PDES Manual.  Nevertheless, the Coast Guard asked this Board to con-
clude that the rebuttal was properly considered based on the fact that the PRC did not 
raise any objection when he reviewed her case file.  However, the PRC’s failure to raise 
objections when the form was not properly completed and there was no evidence of a 
response  by  the  FPEB  in  the  record  does  not  persuade  the  Board  that  the  applicant’s 
rebuttal  was  properly  considered.    The  Coast  Guard  is  entitled  to  a  presumption  of 
regularity with respect to its records.7  However, the incomplete form and the lack of a 
response  to the  rebuttal  proves  that the  rebuttal  was,  at  least,  not  properly  processed 
and  strongly  suggests  that  it  was  never  considered.    The  mere  inclusion  of  the  appli-
cant’s rebuttal as the last document entered in her case file (except for the notice of dis-
charge) and the failure of the PRC to raise an objection (when he also apparently failed 
to notice the incomplete form and the lack of response) does not outweigh the evidence 
of  improper  processing.    However,  the  Board  also  finds  that  the  applicant’s  rebuttal 
contained no new information or arguments that were unknown and unconsidered by 
the FPEB prior to its decision on November 1, 2001.  The Board finds that the rebuttal, 
even if properly processed, was unlikely to change the outcome of her case. 

 
9. 

Many of the examining physician’s notes from the August 7, 2001, exami-
nation concern the condition of the applicant’s right shoulder.  Neither the CPEB nor 
the FPEB assigned a rating for the condition, even though the condition was included in 
their  reports  in  1999,  prior  to  her  placement  on  the  TDRL.    CGPC  argued  that  the 
boards’ failure to consider the condition in 2001 was proper “because she had accepted 
their earlier finding of 0% disability for this at her 1999 PEB.”  CGPC’s argument in this 
respect  is  clearly  erroneous  given  the  acknowledged  purpose  of  TDRL  placement  to 
protect members in cases where their conditions are likely to deteriorate.  The fact that 
the applicant accepted the 0% rating in 1999 is irrelevant to whether her condition could 
have deteriorated while she was on the TDRL.  Accepting a 0% rating upon placement 
on the TDRL does not legally preclude receiving a higher rating if the condition wors-
ens.  However, the CPEB and FPEB were not required to include the shoulder condition 
in their reports if they found that the condition did not contribute to her unfitness for 
duty, and the applicant has not challenged the failure to assign her shoulder condition a 
disability  rating.    Therefore,  the  Board  finds  no  error  or  injustice  in  the  CPEB’s  and 
FPEB’s failure to include a rating for the applicant’s shoulder condition in their reports. 

 
10. 

Likewise, the applicant has not challenged the 10% rating she received for  
the partial paralysis of her left external popliteal nerve, which causes footdrop.  More-
over, the evidence of record does not prove that her problems with footdrop exceed a 
“mild” assessment under VASRD code 8521.   

 

                                                 
7  33 C.F.R. § 52.24(b). 

11. 

The Chief Counsel and CGPC both recommended that the Board raise the 
applicant’s  disability  rating  for  lumbar  spondylosis  from  0%  to  10%,  for  a  combined 
disability rating of 20%, based on a recent assessment by a doctor who served on her 
CPEB.    The  Board  also  notes  the  fact  that  the  applicant’s  housemate  stated  that  she 
sometimes witnessed the applicant suffering back pain after doing physical work, such 
as painting or unpacking boxes.  Accordingly, the Board agrees with the Coast Guard 
that the preponderance of the evidence in the record indicates that the applicant’s back 
condition  does  meet  the  requirements  for  a  10%  disability  rating  under  VASRD  code 
5295, which requires “characteristic pain on motion.” 

 
12. 

 The  applicant  complained  that  the  Coast  Guard  sent  notification  of  her 
discharge  to  the  wrong  address,  which  prevented  her  from  knowing  that  she  had  no 
insurance coverage for about one month at a time when she was pregnant.  Although 
the administrative error was certainly unfortunate and could have caused her signifi-
cant financial harm, the applicant has not shown that she was monetarily or substan-
tively harmed by the late notice. 

 
13.  Accordingly,  partial  relief  should  be  granted  by  raising  the  applicant’s 

disability rating under VASRD code 5295 to 10% and her combined rating to 20%. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of former xxxxxx xxxxxxxxxxxxxxxxxxxxxxx, USCG, for correc-

ORDER 

 

tion of her military record is granted in part as follows: 
 
 
2002, with a 20% combined disability rating, including  
 

Her  record  shall  be  corrected  to  show  that  she  was  discharged  on  January  9, 

(1) a  10%  rating  for  “lumbar  spondylosis  analogous  to  lumbosacral  strain  with 

characteristic pain on motion,” under VASRD code 5299/5295; and  

(2) a 10% rating for “neuritis, left external popliteal nerve, rated as paralysis of, 

incomplete, mild,” under VASRD code 8621/8521. 

 

The Coast Guard shall pay the applicant any sum she may be due as a result of 

 
 

this correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Julia Andrews 

 

 

 
 George J. Jordan 

 

 

 
 Kathryn Sinniger