Citation Nr: 1004564 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 08-12 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Whether new and material evidence has been received to reopen a claim as to whether the character of the Appellant's discharge is a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and MP ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Appellant had military service from October 1969 to October 1974 and was awarded a Combat Infantry Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision by the VA Regional Office (RO) in Sioux Falls, South Dakota, that the Appellant had not submitted new and material evidence regarding the character of his discharge from service. The Appellant provided testimony at a hearing at the RO before the undersigned Acting Veterans Law Judge in June 2009. A transcript of this hearing has been associated with the Appellant's VA claims folder. The Board acknowledges that the present appeal arises from the RO's denial of service connection for posttraumatic stress disorder (PTSD) and diabetes, and that these issues were noted at the June 2009 hearing. However, as part of his April 2008 Substantive Appeal, the Appellant affirmatively indicated that he was only proceeding with the appeal regarding his character of discharge. Thus, this appears to be the only issue over which the Board currently has jurisdiction. See 38 C.F.R. §§ 20.200, 20.202 (2009). Moreover, the denial of the PTSD and diabetes claims was on the basis that the character of the Appellant's discharge was a bar to such benefits. For the reasons detailed below, the Board finds that new and material evidence has not been received to reopen that claim, and, as such, his PTSD and diabetes claims would be denied as a matter of law even if they were part of this appeal. FINDINGS OF FACT 1. All reasonable development and notification necessary for the disposition of the instant case have been completed. 2. A January 1985 VA administrative decision concluded that the character of the Appellant's discharge was a bar to the payment of VA benefits. The Appellant was informed in writing of that decision and his appellate rights, and did not appeal. 3. Although the evidence received since the last prior denial was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence having not been received to reopen the issue of whether the character of the Appellant's discharge is a bar to VA benefits, his request to reopen that matter and the benefit sought on appeal is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.12, 3.13, 3.156(a), 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has provided specific guidance as adequate VCAA notice in cases concerning new and material evidence. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the Board finds that the Appellant has received adequate VCAA notice in accord with the Court's guidelines. For example, he was sent pre-adjudication notice in June 2007 which, in pertinent part, noted the prior determination as to the character of his discharge, informed him that new and material evidence was required to reopen his claim, and described what constituted new and material evidence by language consistent with the relevant regulatory provisions. As such, this correspondence appears consistent with the holding of Kent, supra. The Court has also provided specific guidance as to adequate VCAA notice regarding the character of discharge. See Dennis v. Nicholson, 21 Vet. App. 18 (2007). In this case, the June 2007 letter made clear that VA was adjudicating the Appellant's status as a veteran prior to discussing the merits of any claims. The Appellant was also provided a copy of the regulation regarding character of discharge (38 C.F.R. § 3.12). Although not specifically stated in that letter, the Appellant through his statements and hearing testimony has acknowledged that VA's policy of ineligibility for VA benefits if it was determined his service was dishonorable, and he has attempted to provide information and evidence with respect to the events that led to his discharge and to state why he thought his service was honorable. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In addition to the foregoing, the June 2007 letter informed the Appellant of what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Appellant to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the letter included the information regarding disability rating(s) and effective date(s) mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Appellant had the opportunity to present evidence and argument in support of his claim and did, in fact do so during a hearing before the undersigned in June 2009. Nothing indicates the Appellant has identified the existence of any relevant evidence that has not been obtained or requested. Further, the nature of this appeal is such that the resolution is dependent primarily upon what the records indicate regarding the circumstances of his period of military service. As such, there is no reasonable possibility that any new development, such as a VA medical examination, is necessary for the resolution of this appeal as its findings would go to his current condition and not the circumstances of his discharge from service. Moreover, under the law, an examination is not required in the context of new and material evidence claims. 38 C.F.R. § 3.159(c)(4)(iii); see also 66 Fed. Reg. 45,620, 45,628 (August 29, 2001). Consequently, the Board finds that the duty to assist the Appellant has been satisfied in this case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Factual Background and Legal Analysis The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran contends that he is entitled to VA benefits as he was discharged and then reenlisted into military service, giving him two distinct periods of services. He maintains that he was away without leave (AWOL) due to family illness during his second period of service and should not be penalized for his absences. In order to qualify for VA benefits, a claimant must be a "veteran." Frasure v. Principi, 18 Vet. App. 379, 385 (2004); see also Cropper v. Brown, 6 Vet. App. 450, 452 (1994); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Section 101(2) of the U.S. Code defines a "veteran" as, inter alia, a person "who was discharged or released [from service] under conditions other than dishonorable." 38 U.S.C.A. § 101(2). A claimant receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions in certain circumstances. See 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12. Where VA determines that a person's discharge from service was under dishonorable conditions, the payment of pension, compensation or dependency and indemnity compensation, based on that period of service, is barred. See Cropper, 6 Vet. App. at 452-53; 38 C.F.R. § 3.12. Historically, a January 1985 VA administrative decision concluded that the character of the Appellant's discharge was a bar to the payment of VA benefits. The Appellant was informed in writing of that decision, including his appellate rights, and did not appeal. Consequently, that decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence that is solely cumulative or repetitious in character will not serve as a basis for reconsideration of a previous decision. The decision in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998), stressed that under the regulation new evidence could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Id. at 1363. The evidence on file at the time of the January 1985 administrative decision includes the Appellant's service records. In pertinent part, these records reflect that the Appellant enlisted into active military service in October 1969 for a period of 3 years. He subsequently received a conditional discharge in order to reenlist for an additional 3 years of service in January 1971. As such, there is a DD Form 214 for the period from October 1969 to January 1971, reflecting an honorable discharge. However, the records further reflect that a DD Form 214 for the period from January 1971 to October 1974 shows his discharge under other than honorable conditions due to the Appellant having been AWOL for a total period of 683 days. The time lost includes the periods from December 14, 1971, to January 16, 1972; June 4, 1972, to July 3, 1972; July 4, 1972, to November 27, 1972; January 2, 1973, to September 13, 1973 October 9, 1973, to October 31, 1973; November 1, 1973, to January 7, 1974; January 8, 1974, to January 29, 1974; July 12, 1974, to September 9, 1974; and September 12, 1974, to October 25, 1974. Moreover, it was stated that 125 days were lost subsequent to the normal expiration of term of service. The evidence also includes records pertaining to a court martial proceeding, including a handwritten statement from the Appellant detailing the reasons for his periods of AWOL. A person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits "unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence." 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). In the January 1985 VA administrative decision, it was determined that the Appellant's period of service, that extended from October 1969 to October 1972, would have been terminated under conditions which constitute a bar to VA and related benefits due to willful and persistent misconduct. In support of this conclusion, it was specifically noted that the Appellant began going AWOL in December 1971, and by the time of the October 1972 completion of his first obligated period of service he had 3 periods of AWOL totaling 160 days. The decision also found that the October 1972 to October 1974 period was terminated by an other than honorable discharge involving a period of AWOL in excess of 180 days. Moreover, it was found that there was no evidence showing that the Appellant's mental status was not within normal limits at the time of his separation from service. In June 2007, the RO received the Veteran's request to reopen his claim. The evidence added to the record since the January 1985 administrative decision includes multiple post-service medical records, written statements from the Appellant, and his and his friend's testimony during the June 2009 Board hearing. The Board observes that the post-service medical records reflect the Appellant's psychiatric treatment, and a diagnosis of PTSD. The law provides that a discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12(c), as is the case here, is a statutory or regulatory bar to the payment of benefits, unless it is found that the person was "insane" at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). Thus, "insanity" is a defense to all statutory and regulatory bars, while "compelling circumstances" is only a defense to the statutory bar involving an AWOL period of at least 180 days. Despite the foregoing, the Board observes that it was already determined that there was no evidence of "insanity" at the time of the January 1985 administrative decision. Further, the probative medical evidence indicates the Appellant currently has PTSD, not that he was "insane" at the time of his military service that, thus, caused the behavior resulting in his frequent periods of AWOL. Moreover, as detailed below, a finding of psychiatric disability does not automatically confirm a person is "insane" for the purpose of invoking 38 U.S.C.A. § 5303(b) and 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved, and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). Notably, it was specifically held that mental illness is not identical to 'insanity.'" Beck v. West, 13 Vet. App. 535, 539 (2000). In addition, the Court has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that "a determination of whether a person is insane is in effect a determination of whether that person's actions were intentional and thus the result of willful misconduct." Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a claimant suffered from insanity due to disease or that he did not know or understand the nature or consequences of his acts, or that what he was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In May 1997, the VA General Counsel discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his normal method of behavior could best be resolved by adjudicative personnel on a case- by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). The opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." In particular, the term "become antisocial" in 38 C.F.R. § 3.354(a) refers to the development of behavior which is hostile or harmful to others in a manner which deviates sharply from the social norm and which is not attributable to a personality disorder. In order to be considered insane under the departure-from-accepted-standards criteria of section 3.354(a), a person must both deviate from the accepted standards of the community to which he or she belongs by birth and education and be unable to adjust to the social customs of the community in which he or she resides. Id. The opinion also held that behavior which was generally attributable to a substance-abuse disorder did not exemplify the severe deviation from the social norm or the gross nature of conduct which was generally considered to fall within the scope of the term insanity and therefore did not constitute insane behavior. Id. Generally, the predicate for insane behavior within the meaning of VA law and regulations is a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import and consequences of his acts, such that he is a danger to himself or others. In effect, he is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. Id. However, in this case, a careful review of the evidence added to the file since the last prior denial does not indicate that the Appellant was "insane" at the time he was AWOL during service. Rather, the record indicates he was aware of the consequences of his actions at the time(s) he was AWOL. Therefore, this evidence is cumulative and redundant of the evidence previously of record, and does not raise a reasonable possibility of substantiating the claim. In his written statements and hearing testimony, the Appellant has contended that he had 2 periods of active service and that, thus, he is entitled to VA benefits on the basis that the October 1969 to January 1971 period had an honorable discharge. However, as detailed above, the January 1985 administrative decision specifically took into account the fact that the Appellant reenlisted for an additional 3 years of service in January 1971, but that his discharge from the initial 3 year commitment beginning October 1969 showed persistent and willful misconduct, as there were multiple days of AWOL prior to what would have been the normal October 1972 expiration of this term of service. In other words, this period was considered and adjudicated at the time of the January 1985 administrative decision. The Board further notes that the law provides that a conditional discharge occurs under specified circumstances that include, as here, where a person is discharged prior to the date that person was eligible for discharge under the length of service system, so that he might reenlist. 38 C.F.R. § 3.13(a). Unless an exception applies, the entire period of service, notwithstanding the intervening conditional discharge, will constitutes a single period of service. 38 C.F.R. § 3.13(b). Character of discharge is then determined based upon the character of the final termination of such period of active service. Id. Consequently, the final termination of the Appellant's service in October 1974 under conditions other than honorable applies to the entire October 1969 to October 1974 period, even though he received a DD Form 214 for the period from October 1969 to January 1971. Therefore, this evidence does not raise a reasonable possibility of substantiating his claim. In addition, the Board observes that the January 1985 administrative decision's conclusion, that the Appellant's October 1969 to October 1972 period of active service showed willful and persistent misconduct, is supported by the evidence of record. As already detailed, the Appellant was AWOL on multiple occasions during this period. The Court has determined that an absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448(1995). Similarly, the Court also affirmed a Board decision which found that 32 days unauthorized absence out of 176 days total service was severe misconduct, and, by analogy, persistent misconduct. Winter v. Principi, 4 Vet. App. 29 (1993). The Appellant also provided testimony at his June 2009 hearing regarding the circumstances surrounding his period(s) of being AWOL (family illness). As a general rule, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, in this case, the Appellant's testimony is consistent with the statement he provided during service that was of record at the time of the prior January 1985 decision. He did not provide any pertinent details that were not contained in the statement previously of record. Therefore, the Board finds that this evidence is cumulative and redundant. There being no other evidence added to the file in conjunction with the application to reopen, the Board finds that, while the evidence received since the last prior denial in January 1985 was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. Consequently, new and material evidence has not been received in accord with 38 C.F.R. § 3.156(a). Inasmuch as the Appellant has not submitted new and material evidence in support of his request to reopen, the Board does not have jurisdiction to consider the claim or to order additional development. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). ORDER New and material evidence not having been received, the Appellant's request to reopen the issue of whether the character of his discharge is a bar to VA benefits, is denied. ____________________________________________ D. J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs