Citation Nr: 1137553 Decision Date: 10/05/11 Archive Date: 10/11/11 DOCKET NO. 07-04 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim regarding whether the character of the Veteran's discharge from service is a bar to Department of Veterans Affairs (VA) benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The appellant served on active duty from April 1, 1969 to January 17, 1972. In a July 1979 decision, the RO held that the Veteran's discharge from military service on January 17, 1972, precluded his entitlement to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code). The RO gave the Veteran his appellant rights, and he did not appeal that determination. In an April 1997 letter, the RO again held that the Veteran's discharge from military service on January 17, 1972, precluded his entitlement to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code). The RO gave the Veteran his appellant rights, and he did not appeal that determination. In an April 2006 determination, the RO again held that that the Veteran's discharge from military service on January 17, 1972, precluded his entitlement to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code). The Veteran perfected an appeal of that denial. In March 2009, the Veteran testified at a videoconference hearing that was chaired by the undersigned Veterans Law Judge, and had previously accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2010). In April 2009, the Board remanded the Veteran's claim. The agency of original jurisdiction (AOJ) continued the previous denial of the claims in November 2010, January 2011, and June 2011 supplemental statements of the case (SSOCs). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. In an April 1997 letter, the RO held that the Veteran's discharge from military service on January 17, 1972, precluded his entitlement to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code). 2. Evidence submitted since the April 1997 determination by the RO is cumulative or redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 1997 RO letter which held that the Veteran's discharge from military service on January 17, 1972, precluded his entitlement to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code) is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. Since the April 1997 determination by the RO, new and material evidence has not been received, and the claim of whether the character of the Veteran's discharge from service is a bar to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code) is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to reopen the issue of whether the character of his discharge is a bar to the award of VA compensation benefits. The Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As noted above, in April 2009, the Board remanded this claim and ordered the Veterans Benefits Administration (VBA) to contact the service department and clarify whether the character of discharge for the Veteran's period of active duty from February 25, 1970 to January 17, 1972 was currently considered to be under other than honorable conditions or whether character of discharge was currently considered to be under honorable conditions. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the RO contacted the service department in order to clarify whether the character of discharge for the Veteran's period of active duty from February 25, 1970 to January 17, 1972 was currently considered to be under other than honorable conditions or whether character of discharge was currently considered to be under honorable conditions. The National Personnel Records Center (NPRC) provided a response in May 2009, and a report was associated with the Veteran's claims folder. The Veteran's character of discharge claim was readjudicated via November 2010, January 2011, and June 2011 SSOCs. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2010)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a 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. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). This requires VA to look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. In February 2006, the Veteran claimed service connection for a psychiatric disorder. In an April 2006 decision, the RO informed the Veteran that his discharge from military service was under other than honorable conditions and constituted a bar to VA benefits. Although the April 2006 decision did not provide the Veteran with the definition of new and material evidence, he was informed of these criteria in a February 2007 letter from the RO. Additionally, the February 2007 letter informed the Veteran as to the reason his character of discharge claim was previously denied: "[y]our claim was previously denied because your circumstances surrounding your other than honorable discharge from military service are a bar to VA benefits. Therefore, the evidence you submit must relate to this fact." As such, the Veteran was adequately advised of the basis for the previous denial and of what evidence would be new and material to reopen the claim. See Kent, supra. While the February 2007 letter was provided after the initial adjudication of the claim, the Board finds that the Veteran has not been prejudiced by the timing of this notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the Veteran's claims in April 2007, November 2010, January 2011, and June 2010 SSOCs. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes statements from the Veteran and his mother, the Veteran's service treatment records, as well as VA and private treatment records. The Veteran has not alleged that there is any additional outstanding evidence pertinent to his claim. The Board is also unaware of any such evidence. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He was afforded a hearing before the undersigned in March 2009. Accordingly, the Board will proceed to a decision. Analysis Under VA laws and regulations, and for benefits purposes, a "veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). Furthermore, a discharge under honorable positions is binding on VA as to the character of discharge. Id. Notwithstanding the foregoing, under governing law, a discharge or release from service is considered to have been issued under dishonorable conditions in certain circumstances as specified in 38 C.F.R. § 3.12(b). A discharge under other than honorable conditions is considered to be under dishonorable conditions if it is determined that it was issued because of an offense involving moral turpitude; this includes, generally, conviction of a felony. See 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(d)(3). A discharge under other than honorable conditions is also considered to be under dishonorable conditions if it is determined that the discharge was issued because of willful and misconduct. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(d)(4). Discharge for a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4). However, "offenses that would interfere with the appellant's military duty, indeed preclude their performance ... are not minor." Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). An honorable or general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C. 1553, sets aside a bar to benefits imposed under paragraph (d), but not paragraph (c), if certain requirements are met. 38 C.F.R. § 3.12(g). Unless a discharge review board established under 10 U.S.C. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in paragraph (g) of this section, an honorable or general discharge awarded under the Department of Defense's Special Discharge Review Program effective April 5, 1977, does not remove any bar to benefits imposed by 38 C.F.R. § 3.12(c). 38 C.F.R. § 3.12(h)(2). These provisions of law arose from the enactment of Public Law No. 95-126, § 1(a) (Oct. 8, 1977), which added 38 U.S.C.A. § 5303(e), and engendered 38 C.F.R. § 3.12(g), (h). Further, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). An insane person is one 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 who interferes with the peace of society; or 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). As to 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). The United States Court of Appeals for Veterans Claims (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). 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. 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." The opinion also held that behavior which is generally attributable to a substance-abuse disorder does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall within the scope of the term insanity and therefore does not constitute insane behavior. VAOPGCPREC 20-97 (May 22, 1997). Pursuant to 38 U.S.C.A. § 5108, a claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. 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) (2010). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Claim to reopen In a July 1979 decision, the RO held that the Veteran's discharge from military service on January 17, 1972, precluded his entitlement to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code) because "[the Veteran's] conduct during service was of such nature and frequency as to constitute willful and persistent misconduct within the meaning of present laws." The RO gave the Veteran his appellant rights, and he did not appeal that determination. When the Veteran's claim was denied by the RO in July 1979, the evidence included the Veteran's service personnel records and service treatment records. A memorandum from the Veteran's executive officer to his commanding officer dated in September 1970 noted the Veteran's unfitness for military duty as documented the Veteran's Article 15's for damaging military property through neglect (dropping four batteries without proper authority) and for disrespect (using disrespectful and obscene language towards his sergeant and refusing to pick up cigarette butts). The executive officer also noted that "[the Veteran] has failed to prove his worthiness as a soldier since his arrival in this unit. His acceptance of assigned responsibilities is far below the standard of this unit." He also stated that the Veteran "continually avoided performing his duty" and that it was felt that the Veteran's shirking was "done willfully and through design" and was an established pattern. The Veteran's troop maintenance officer further noted the Veteran's "laziness and disrespect" towards officers. The Veteran's first sergeant documented the Veteran's "continuous reports of absent from formations without authority" and that he was "habitually out of uniform." The Veteran waived his right to appear and have his case heard before a Board of Officers. Based on the Veteran's statements and the evidence of record, the Commanding Officer recommended that the Veteran be separated from service for unfitness and furnished an Undesirable Discharge Certificate. An August 1970 service neuropsychiatric examination documented the reports of the Veteran's superior officers that the Veteran resented discipline, refused to put forth effort in his military duties, complained continuously, and constantly broke rules. The examining psychiatrist documented the Veteran's history of passive aggressive behavior and noted that any attempts at rehabilitation would not remedy the situation. Upon examination, the examining psychiatrist reported that the Veteran was oriented to time, place, and person. His memory was intact, affect was flat, and judgment and insight were limited. There was no evidence of any thought disorder, psychotic behavior, incapacitating neurosis or cerebral dysfunction. The examining psychiatrist indicated that the Veteran demonstrated a chronic character and behavior disorder. He further found that the Veteran did not evidence any psychiatric disease or defect which warranted disposition through medical channels; he was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings; and that the condition and problems presented by the Veteran were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military, and it was unlikely that efforts to rehabilitate or develop the Veteran into a satisfactory member of the military would be successful. The examining psychiatrist rendered diagnoses of character and behavior disorder, passive aggressive personality, manifested by difficulty with authority figures, poor impulse control, apathy, and poor insight and judgment. He further recommended that the Veteran be separated from the military. Additionally, a September 1970 service examination documented a diagnosis of passive-aggressive personality disorder. Further, a psychiatric examination dated in June 1971 indicated that the Veteran was verbally underproductive, but was coherent and relevant. The examining psychiatrist noted that although the Veteran was somewhat guarded and evasive throughout the interview, he denied hallucinations and delusions. The examiner diagnosed the Veteran with paranoid schizophrenia. A subsequent examination dated in September 1971 documented the Veteran's depressive attitudes, usage of drugs, history of violence, irritability, and poor judgment. The examining psychiatrist noted that the Veteran was mentally ill. The Veteran was also diagnosed with antisocial personality and drug dependence in an October 1971 examination. Also of record at the time of the July 1979 decision was an administrative decision from the RO dated in November 1972 indicating that the Veteran's discharge from active duty on January 17, 1972 was furnished under conditions other than honorable due to willful and persistent misconduct. In particular, the RO discussed the facts and circumstances discussed above resulting in the Veteran's other than honorable discharge from service. The Board also notes that a medical treatment record dated in December 1973 and a VA examination dated in September 1977 documented diagnoses of antisocial personality disorder and drug dependence. The Board further observes a statement from the Veteran's mother in August 1973 as well as statements from the Veteran documenting his mental illness symptomatology as well as his contention that he should have been discharged from the military under honorable conditions. The evidence of record prior to the July 1979 decision also included the Veteran's application for consideration under the "DOD Discharge Review Program (Special)" which resulted in his discharge of under other than honorable conditions being upgraded to under honorable conditions (general) in June 1977. In July 1978, the Army Discharge Review Board did not affirm the Department of Defense Special Discharge Review Program upgraded discharge. In an April 1997 letter, the RO again held that the Veteran's discharge from military service on January 17, 1972, precluded his entitlement to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code) because "your character of discharge was considered to have been under conditions that were a bar to VA benefits." The RO gave the Veteran his appellant rights, and he did not appeal that determination. The April 1997 decision therefore became final. When the RO declined to reopen the Veteran's claim in April 1997, the evidence included a report from the service department dated in August 1991 indicating that the character of discharge for the Veteran's period of active duty from February 25, 1970, to January 17, 1972 was under honorable conditions. The evidence of record also included statements from the Veteran furthering his contention that he should have been discharged from the military under honorable conditions. Moreover, a psychiatric evaluation dated in June 1991 revealed a diagnosis of psychosis, not otherwise specified. In February 2006, the RO received the Veteran's claim to reopen the issue of whether the character of his discharge is a bar to the award of VA compensation benefits. After the RO declined to reopen the Veteran's previously denied claim based upon his failure to submit new and material evidence, this appeal followed. The evidence which has been added to the record since the April 1997 decision by the RO will be discussed in the Board's analysis below. In essence, the RO denied the Veteran's claim in 1997 because the nature of the Veteran's discharge from service was considered as under dishonorable conditions due to his pattern of willful and persistent misconduct which barred the payment of VA compensation. The unappealed April 1997 determination from the RO is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). As explained above, the Veteran's character of discharge claim may be reopened only upon the submission of new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). The Board notes that the RO declined to reopen the Veteran's claim in the April 2006 determination. Notwithstanding the RO's actions, it is incumbent on the Board to adjudicate the new and material issue before considering the claim on its merits. The question of whether new and material evidence has been received is one that must be addressed by the Board. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant]. After a thorough review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence sufficient to reopen the claim of whether the Veteran's character of discharge from military service is a bar to the payment of VA disability compensation has not been submitted. In the present case, the unestablished facts are whether the Veteran's character of discharge should be considered honorable for VA purposes. As explained above, the Veteran's character of discharge claim may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted [i.e., after April 1997] evidence bears directly and substantially upon the specific matter under consideration. The evidence added to the record since the April 1997 determination from the RO consists of the Veteran's statements, as well as a report from the NPRC dated in May 2009. The Board observes a report from the NPRC dated in May 2009 which states that "According to the documents on file. The Veteran's COD is listed as under honorable conditions." While the May 2009 report from the NPRC is undoubtedly new, as it was not of record at the time of the April 1997 RO decision, this report essentially replicates a finding by the service department dated in August 1991 that the Veteran's discharge from service was under honorable conditions. Such evidence is not new and material, since the existence of the service department finding was known in April 1997. This additional information does not establish that the Veteran's discharge was not due to his willful misconduct or that he was insane at the time that he committed his offenses that led to the bar of VA compensation benefits. Further, there is no evidence of a review and approval by the Army Discharge Review Board on an individual basis pertaining to the Veteran's case. As discussed above, unless a discharge review board established under 10 U.S.C. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in paragraph (g) of this section, an honorable or general discharge awarded under the Department of Defense's Special Discharge Review Program effective April 5, 1977, does not remove any bar to benefits imposed by 38 C.F.R. § 3.12(c). That is, without evidence that the Veteran's discharge was upgraded by a review board under 10 U.S.C. § 1553, his willful and persistent misconduct resulted in his discharge to be considered as having been issued under honorable conditions. As such, the service department report does not establish or suggest that the Veteran's discharge from service was not due to willful and persistent misconduct. There is no other new and material evidence submitted subsequent to the April 1997 RO decision which suggests that the Veteran's discharge should not be considered to have been issued under dishonorable conditions due to willful and persistent misconduct. In reaching this conclusion, the Board has considered the various statements submitted by the Veteran in support of his claim to the effect that his character of discharge was upgraded to an honorable discharge and that he was forced to murder a prisoner of war while serving in Vietnam (establishing compelling circumstances existed with respect to his misconduct) such evidence is cumulative and redundant of similar statements made prior to the April 1997 RO decision. See, e.g., a statement from the Veteran dated in April 1992. Accordingly, such statements are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Finally, the Board notes that the evidence added to the file since the last prior denial does not indicate that the Veteran was "insane" at the time he was discharged under other than honorable conditions from service. As mentioned above, the evidence at the time of the prior final RO determination included diagnoses of character and behavior disorder and passive aggressive personality in August 1970. At that time, the Veteran was mentally responsible and able to distinguish right from wrong. Subsequent examinations discussed above indicated that the Veteran was "mentally ill" and diagnoses of paranoid schizophrenia and psychosis were rendered, there is no objective evidence documenting a certification of insanity. The evidence submitted since the last final denial contains no competent medical opinion that the Veteran was insane at the time of his willful and persistent misconduct. To the extent that the Veteran has maintained that he had developed a psychiatric disorder during service, such contentions had previous been made prior to the April 1997. Therefore, these current assertions are cumulative and redundant of the evidence previously of record, and do not raise a reasonable possibility of substantiating the claim. The Veteran has been accorded ample opportunity to submit new and material evidence, to include evidence that his character of discharge should not be considered to have been issued under dishonorable conditions. He has failed to do so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to submit evidence in support of his claim]. In short, the element which was missing at the time of the April 1997 finding that the Veteran's character of discharge from military service was a bar to VA benefits remains lacking. New and material evidence has not been received, and the Veteran's claim of whether new and material evidence has been received to reopen a claim regarding whether the character of the Veteran's discharge from service is a bar to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code) may not be reopened. The benefit sought on appeal remains denied. ORDER New and material evidence has not been received to reopen the claim of whether new and material evidence has been received to reopen a claim regarding whether the character of the Veteran's discharge from service is a bar to VA benefits (exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code). The benefit sought on appeal remains denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs