Citation Nr: 1019655 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 08-09 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether the character of discharge for the Veteran's service from March 2000 to May 2004 constitutes a bar to benefits under the laws administered by the Department of Veterans Affairs. 2. Entitlement to service connection for post traumatic stress disorder (PTSD). 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Byron Simpson, Attorney-At-Law WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Spouse ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran had active duty service with the Maryland Army National Guard from August 1995 to December 1995. He entered active service with the regular Army in March 1997. He was discharged in May 2004. The character of his discharge is discussed below. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2005, November 2005, and March 2006 rating decisions by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The April 2005 decision denied service connection for PTSD, based in part on a finding from a March 2005 administrative decision that a bar to benefits existed due to a discharge under other than honorable conditions. In October 2005, the Veteran submitted a timely notice of disagreement (NOD) with both the administrative decision and the denial of service connection. While the RO has not issued a statement of the case (SOC) with regard to these issues, as it did not recognize the Veteran's filing as an NOD, it has issued subsequent decisions reconsidering the merits of the claims. These serve as the equivalent of an SOC, and the Veteran's subsequent correspondence serves to perfect the appeals. 38 C.F.R. §§ 19.29, 20.202. The November 2005 decision denied service connection for migraine headaches and bilateral hearing loss; the decision was a reconsideration of the April 2005 denial of service connection for those disabilities. The issue of service connection for tinnitus was denied in the March 2006 decision. A timely NOD was filed in May 2008 addressing the issues of service connection for migraine headaches, bilateral hearing loss, and tinnitus. The Veteran and his wife testified at an April 2010 hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The issue of service connection for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. The Veteran accepted a discharge Under Other Than Honorable (OTH) conditions in May 2004, in lieu of trial by court martial. 2. In September 2005, a Discharge Review Board convened under the authority of 10 U.S.C.A. § 1553 upgraded the discharge to General, Under Honorable Conditions (UHC), but left the reason for discharge as in lieu of trial by court martial. 3. The Veteran was not convicted by a general court martial, and was not facing sentencing by a general court martial; there is no evidence of willful and persistent misconduct. 4. The Veteran was diagnosed with PTSD in service, based on his verified combat experiences. 5. Bilateral hearing loss is at least as likely as not related to in-service combat noise exposure. 6. Tinnitus is at least as likely as not related to in- service combat noise exposure. CONCLUSIONS OF LAW 1. The Veteran's character of discharge is honorable for VA purposes. 10 U.S.C.A. § 1553 (West 2002 & Supp. 2009); 38 U.S.C.A. §§ 5107, 5303 (West 2002 & Supp. 2009); 38 C.F.R. § 3.12, 3.102 (2009). 2. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefits sought in the appeals decided here. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Character of Discharge Gratuitous benefits administered by VA, including compensation and pension, are payable only to those having status as Veterans. A Veteran is defined as a person "who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable." 38 C.F.R. § 3.1(d). A service member who holds a discharge under dishonorable conditions is barred from receiving payment of gratuitous benefits. 38 C.F.R. § 3.12(a). In May 2004, the Veteran accepted an OTH discharge in lieu of a trial by court martial. The Veteran had been charged, but had not gone to trial or been convicted of any violation of the Uniform Code of Military Justice. (UCMJ). The Veteran was charged as part of a group attempting to smuggle a number of AK-47 rifles and faced extensive prison time if convicted. However, the Veteran was not in fact convicted. Although he was required to admit guilt to the charged offense or some lesser included offense, as per the approving memorandum from his command, "the Charge and its specifications are hereby dismissed without prejudice to the government" upon his acceptance of the discharge. In January 2005, the Veteran petitioned the Department of the Army for an upgrade in his character of discharge in order to remove the bar to eligibility for gratuitous VA benefits that exists with an OTH discharge. An Army Discharge Review Board (DRB) granted his application in part in a September 2005 decision. The DRB found that the discharge was proper, and declined to change the reason from "in lieu of trial by court martial," but did find the imposition of an OTH discharge to be inequitable in light of the Veteran's otherwise distinguished service. An upgrade to a General, UHC discharge was awarded. Prior to the DRB decision, the RO issued an administrative decision in March 2005 finding that the Veteran's period of service from March 2000 to May 2004 was OTH, and hence no gratuitous benefits could be awarded based on that period. Specifically, the RO found that a bar to benefits was imposed under 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c)(2), for discharge by reason of the sentence of a general court- martial. Among the findings of fact is the statement that the Veteran's "service medical records reflect he was pending General Court Martial." In April 2007, the RO reconsidered the bar to benefits in light of the Veteran's upgraded discharge. In that decision, the RO found that the Veteran's service from March 2000 to May 2004 was dishonorable for VA purposes under 38 C.F.R. § 3.12(d)(4), for willful and persistent misconduct. In the discussion accompanying this conclusion, however, the RO makes no mention of willful and persistent misconduct. The record, similarly, contains absolutely no evidence of willful and persistent misconduct; the Veteran's service was exemplary with the exception of the single incident which lead to his arrest. The reasons and bases, in fact, focused on the fact that the discharge was in lieu of a trial by court martial, and state that this bar is not removed by the upgraded discharge from the DRB. This assertion relies on a VA General Counsel Opinion, 10-96, which discussed the removal of bars to benefits under a different provision of law. While it is true that certain bars to entitlement are not lifted by the upgrading of a character of discharge by a DRB, none of those bars apply to this case. Generally speaking, a UHC discharge is binding on VA. 38 C.F.R. § 3.12(a). 38 C.F.R. § 3.12(c) spells out specific reasons for discharge which preclude the payment of benefits, including: being a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; by reason of the sentence of a general court-martial; the resignation by an officer for the good of the service; being a deserter; being an alien during a period of hostilities, where it is shown that the service member requested release; or by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. Both the March 2005 and April 2007 administrative decisions hold that the Veteran's discharge fell into one of the categories of 38 C.F.R. § 3.12(c). That conclusion in those decisions is clearly wrong. The Veteran is not a conscientious objector, was not an officer or alien released at his own request, and was not shown to have been AWOL for any period of time. Records refer to lost time, but the Veteran was not AWOL, he was under confinement. In any case, the lost time is less than 180 days. Most relevant to the current inquiry, however, is the fact that the Veteran has never been sentenced by a general court martial. He did seek discharge pending such a trial, and this is cited as the reason for discharge in his original and upgraded separation papers. Personnel and medical records make clear, however that the trial never took place. The specifications were dismissed on his discharge. The bar imposed by the original OTH discharge, then, is not and never was governed by the provision of 38 C.F.R. § 3.12(c). It instead falls within 38 C.F.R. § 3.12(d)(1); the Veteran accepted an undesirable discharge to escape trial by general court-martial. Regulations provide that where a DRB is convened after October 1977 under authority of 10 U.S.C.A. § 1553, the upgraded discharge lifts a bar imposed under 38 C.F.R. § 3.12(d), but not under 38 C.F.R. § 3.12(c). The upgrade must be based on individual review of the file, comply with uniform standards and procedures applicable to all similarly situated service members, be consistent with historical standards, and not be subject to automatic grant or denial. 38 C.F.R. § 3.12(g). As the Veteran applied for upgrade under a program applicable to all, and was subject to the same standard as other service members with OTH service, the September 2005 determination by the DRB serves to lift the bar imposed at his original separation from service. The Veteran's active duty service from March 2000 to May 2004 is honorable for VA purposes, and no bar to entitlement to VA benefits exists with regard to that service. Basic eligibility for VA benefits is warranted. III. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the case of PTSD, a verified in-service stressor event is also required. 38 C.F.R. § 3.304(f). A. PTSD It is undisputed that the Veteran has a current diagnosis of PTSD. He was diagnosed with PTSD while still on active duty, based on his combat experiences. Following service, treating providers and examining VA doctors have agreed with that diagnosis. Because PTSD was diagnosed in service, in-service stressors are conceded. 38 C.F.R. § 3.304(f)(1). The basis for the denial of service connection was the fact that the combat stressors upon which the diagnosis of PTSD rested occurred between March 2000 and May 2004, during the period of service previously found to be disqualifying for VA purposes. However, in light of the above decision recognizing that period of service as honorable for VA purposes, that obstacle is removed. The Veteran's combat stressors occurred during a period of good service, and may be considered in substantiating his claim. Accordingly, service connection for PTSD is warranted. B. Hearing Loss and Tinnitus As the analysis for both issues is identical, they are discussed together. Service treatment records document the Veteran's routine exposure to high noise levels during service, even prior to his exposure to combat noise. A January 2001 audiogram reported slight increases of puretone thresholds at most frequencies, despite the use of earplugs. Complaints of or treatment for tinnitus are not noted in service records. At an October 2005 VA examination, the Veteran reported that he had experienced a sudden loss of hearing acuity two years prior, following the explosion of bombs in Iraq. Tinnitus began at the same time. The Veteran also described his chronic noise exposure in the regular performance of his duties. He denied recreational noise exposure, but did state that he had worked as a carpenter after service and was exposed to noise in that job. He had used hearing protection, however. The Veteran found it difficult to understand conversations against background noise, and he had difficulty hearing on a cell phone. Testing established a bilateral hearing loss disability for VA purposes based on speech recognition scores of 92 percent on the right and 90 percent on the left. 38 C.F.R. § 3.385. The audiologist opined that the Veteran's hearing loss and tinnitus were at least as likely as not related to military noise exposure. She was not able to review the claims file in connection with her claim, and based this opinion on the Veteran's reports. The Veteran's statements to the doctor are consistent with the facts and circumstances of his service, and are corroborated by his service records. The examiner considered the correct nature and extent of the Veteran's in-service noise exposure. None of the Veteran's allegations of in- service onset of hearing loss and tinnitus are contradicted by the record; the Veteran is considered a credible historian. The medical opinion regarding the etiology of hearing loss and tinnitus is highly probative of the issue of service connection. There is no evidence contradicting the medical opinion and the statements of the Veteran and, accordingly, service connection for bilateral hearing loss and tinnitus is warranted. ORDER The character of discharge for service from March 2000 to May 2004 does not constitute a bar to VA compensation, and basic eligibility for VA benefits is granted. Service connection for PTSD is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim for migraine headaches. That duty includes providing the Veteran with an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Service treatment records show treatment in October 1999 for possible migraine headaches. The Veteran complains of current headaches and VA treatment records confirm a current diagnosis of migraines. The RO initially scheduled the Veteran for several VA medical examinations, including an examination to obtain a medical opinion on the etiology of the headaches and any relationship to service. The Veteran failed to report for the examinations and subsequently requested rescheduling. Although several other examinations were then rescheduled, a specific examination for migraine headaches was not rescheduled and the issue of migraine headaches was not addressed by any of the doctors who provided the rescheduled examinations. Remand is required to accomplish rescheduling of the examination. The RO properly determined that an examination and medical opinion were required, and no rationale for changing that determination has been provided. There is in- service treatment, a current diagnosis, and the reasonable possibility of a link between them. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA Miscellaneous Neurological Disorders examination. The claims folder must be reviewed in conjunction with the examination. The examiner should state whether the Veteran is diagnosed with any current headache disorder, and if so, whether such is at least as likely as not related to service. The October 1999 treatment for questionable migraines must be discussed. A full and complete rationale for all opinions is required. 2. Review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue an SSOC and provide the appellant and his representative an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs