IN THE CASE OF: BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150003039 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, via his Member of Congress, a review of the military disability evaluation pertaining to his conditions of chronic obstructive pulmonary disease (COPD) and post-traumatic stress disorder (PTSD). 2. The applicant states: * at the time of his discharge, he had been prescribed inhaled steroids and albuterol and he used them multiple times daily * the Department of Veterans Affairs (VA) also prescribed the use of a nebulizer multiple times daily * his PTSD diagnosis was ignored, but disability compensation was granted by the VA 3. The applicant provides email from the Medical Legislative Liaison, Department of the Army Office of the Chief of Legislative Liaison, dated 23 February 2015. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's request for review of his claim for PTSD was considered by the ABCMR on 10 September 2014 in coordination with the Department of Defense Physical Disability Board of Review Special Review Panel under independent action from his application to this Board. Therefore, this portion of his request will not be discussed further in this Record of Proceedings. 3. Having prior enlisted service in the Regular Army and Army National Guard (ARNG), the applicant enlisted in the ARNG on 8 February 2006. He entered active duty in an Active Guard Reserve status on 2 October 2006. 4. A DA Form 3349 (Physical Profile), dated 3 October 2008, shows he was assigned a permanent physical profile rating of 3 under the physical capacity or stamina factor for COPD. 5. His medical evaluation board proceedings are not available for review. 6. On 19 October 2009, a physical evaluation board (PEB) found him physically unfit and recommended a combined disability rating of 40 percent due to: * degenerative arthritis of the cervical spine (20 percent) * degenerative arthritis of the thoracolumbar spine (10 percent) * emphysema or COPD (10 percent) 7. The DA Form 199 (PEB Proceedings) disability description for emphysema or COPD states the applicant has a 37.5 pack per year smoking history. He developed exertional dyspnea and has not been able to complete an alternate Army Physical Fitness Test since 2006 which is unfitting. The computed tomography scan of his chest showed early emphysematous changes. Pulmonary function tests showed decreased values even after treatment. He has a slightly elevated carbon monoxide level from smoking. A methacholine challenge test showed some reversible bronchospasm. A cardiology evaluation was normal. He was assigned a 10-percent disability rating for this condition. 8. The PEB recommended permanent disability retirement. On 20 October 2009, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case. 9. The U.S. Army Physical Disability Agency approved the PEB findings and recommendation. 10. On 7 January 2010, he was retired from active duty by reason of permanent disability. 11. A VA Rating Decision, dated 19 June 2012, notified him of its decision to award service-connected disability compensation for: * PTSD (50 percent) * sclerotic change of the distal right femur (10 percent) * bilateral shoulder strain (10 percent) * left knee strain (10 percent) * thoracolumbar strain (10 percent) * degenerative disc disease cervical spine (10 percent) * tinnitus (10 percent) * asthma (10 percent) * gastroesophageal reflux disease (10 percent) * hearing loss left ear (0 percent) * chronic sinusitis (0 percent) 12. The VA determined his condition of emphysema/COPD was not service connected/not incurred or caused by his service and was not subject to compensation. 13. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the PEB found the applicant physically unfit in 2009 based in part on his condition of emphysema/COPD and assigned a 10-percent disability rating for this condition. He concurred with the PEB findings and recommendation. 2. There is insufficient evidence to show the applicant's unfitting condition of emphysema/COPD was improperly rated by the PEB in 2009. The evidence further shows the VA determined the condition of emphysema/COPD was not related to his military service and was not subject to compensation. 3. There is no evidentiary basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150003039 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003039 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1