Citation Nr: 1121607 Decision Date: 06/03/11 Archive Date: 06/09/11 DOCKET NO. 09-40 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES Whether new and material evidence to reopen a prior character of discharge decision has been received. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant entered the service in July 1969. He was separated from service in January 1975, following a period of absence without leave (AWOL) of 957 days, under conditions other than honorable. The appeal arose from an August 2008 administrative decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. In August 2003, the Board found that the character of the appellant's discharge was a bar to VA benefits. 2. Evidence associated with the claims file since the August 2003 Board decision is cumulative and redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW As new and material evidence has not been received, the claim for a character of discharge determination is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Specific to requests to reopen, a claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The record reflects that the Veteran was mailed letters in July 2004, October 2004, December 2004, September 2006, and July 2007 advising him of what the evidence must show. The August 2008 administrative decision reflects the adjudication of the claim after issuance of these letters. Hence, these letters-which meet the content of notice requirements described in Pelegrini and Kent-also meets the VCAA's timing of notice requirement. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, in this case, the benefit sought is being denied. Consequently, there is no disability-rating or effective date element to be assigned. Because of the decision in this case, any deficiency in the initial notice to the Veteran of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file. Service personnel records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). The Board, in the first instance, must rule on the matter of reopening a claim. The Board has a responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In an August 2003 decision the Board determined that the character of the appellant's discharge from active military service constituted a bar to VA benefits. The Board noted that the appellant entered the military service on July 30, 1969. Prior to the completion of his initial 3 year commitment, he reenlisted on February 7, 1971. The appellant was absent without leave from June 7, 1972 to January 23, 1975, for a total of 957 days. He cited "family problems" as his reason for going AWOL. The appellant never provided any further details as to his reasons for going AWOL. It was further noted by the Board that a review of the appellant's service medical records contained no references to any "family problems." His entrance examination conducted in July 1969 and his separation examination conducted in January 1975 were completely within normal limits. Further, the appellant had requested an upgrade in his discharge. In December 1975, he was issued a DD Form 215, Correction to DD Form 214, Report of Separation from Active Duty. This noted that a Clemency Discharge had been issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No. 4313. In May 1978, another DD Form 215 was issued. This noted that his discharge had been reviewed pursuant to Public Law 95-126 and a determination had been made that the change in the characterization of his service was warranted by Department of Defense directive. The Board found that the appellant's character of discharge was a bar to the receipt of VA benefits and health care. Since the appellant had not completed his first three years of service before reenlistment, and because the period of AWOL had begun prior to the date this first commitment would have ended, his entire period of service, from July 1969 to January 1975, was considered to be one period of service. While the appellant had noted that he had gone AWOL due to "family problems," he had not provided enough information, despite being requested to, to allow for a finding of compelling circumstances that would justify his absence. The Board noted that the appellant was granted an upgrade in the character of his discharge in 1975. However, this was awarded pursuant to Presidential Proclamation 4313; and such an upgrade under this program did not remove the bar to benefits (see 38 C.F.R. § 3.12(c), (g), (h)). Thus, the Board found that the character of the appellant's discharge was a bar to the receipt of VA benefits and health care. The evidence received since the August 2003 Board decision includes copies of service personnel records, copies of papers relating to the upgrade of the appellant's discharge, and additional statements from the Veteran. Unfortunately, the newly submitted material is cumulative of evidence of record prior to the August 2003 Board decision and does not constitute new and material evidence. The copies of the appellant's personnel records and upgraded discharge are essentially duplicates of the upgraded discharge paperwork previously submitted and considered by the Board in August 2003. As they are copies of materials previously considered, they are not new. The Veteran's statements are merely redundant of the evidence previously considered. In sum, the appellant's claim was previously denied by the Board in August 2003 because the appellant was discharged as a result of being AWOL for a continuous period of over 180 days and received an upgrade in the character of his discharge pursuant to Presidential Proclamation 4313; as such, he was barred from receiving VA benefits according to 38 C.F.R. § 3.12. The evidence added to the claims file since the August 2003 rating decision is either cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include new competent and credible evidence which demonstrates that the Veteran was not discharged as a result of being AWOL for a continuous period of over 180 days or received an upgrade in the character of his discharge under auspices different than Presidential Proclamation 4313, which were the bases for the prior determination. Again, the discharge upgrade paperwork submitted consists essentially of copies of records previously considered, and the Veteran's statements are merely redundant of the evidence previously considered. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER New and material evidence was not received to reopen a prior character of discharge decision; the appeal is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs