Citation Nr: 1111309 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 07-26 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been presented to reopen a claim of whether the character of the appellant's discharge constitutes a bar to VA benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The appellant had active service from January 1968 to April 1970; he was discharged from such service under undesirable conditions. The Board notes that the issue on appeal was previously characterized as character of discharge. However, as discussed in greater detail below, the Board finds that new and material evidence is required to reopen the issue on appeal. As a result, the Board has reframed the issue as shown on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reason for Remand: To provide the appellant a proper notice letter and to obtain the personnel records. The appellant seeks to reopen a previously denied claim whether the character of his discharge is a bar to VA benefits. In the May 1979 administrative decision, the RO found that the character of the appellant's discharge was a bar to VA compensation. The RO noted the appellant's in-service offenses and his undesirable discharge on April 27, 1979. The appellant had applied for an upgrade of his discharge under the Department of Defense Review Program (Special). The appellant received an upgrade of his discharge to "under honorable conditions." However, when reviewed by the Naval Discharge Review Board, it was determined that an upgrade was not justified under the new, uniform standards for discharge review. See 10 U.S.C. § 1553, see also 38 C.F.R. § 3.12. Therefore, the RO determined that the Veteran's discharge of April 27, 1970, was considered to be under conditions which are a bar to all VA benefits, except for medical benefits under Public Law 95-126. Although notified of the denial in a June 1979 letter, the appellant did not initiate an appeal of that determination. As such, the decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board notes that the new and material evidence requirement set forth in 38 U.S.C.A. § 5108 (West 2002) applies to the reopening of claims that were disallowed for any reason, including those claims for establishing status as a claimant. See D'Amico v. West, 209 F.3d 1322, 1326-1327 (Fed. Cir. 2000). As such, claims for basic eligibility that have previously been finally denied must first meet the new and material evidence requirement before that claim can be reopened. The issue of new and material evidence must be addressed regardless of whether the RO based its determination on that issue. See Barnett v. Brown, 8 Vet. App. 1 (1995). In October 2006, the appellant submitted a claim of entitlement to service connection for posttraumatic stress disorder (PTSD), depression, tinnitus, pressure in head, and left foot numbness. In a December 2006 letter, the RO again determined that the appellant's discharge was a bar to eligibility for VA benefits. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims ("Court") addressed notification requirements with respect to new and material evidence claims. The Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought. The Secretary is required to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. Unfortunately, the previous correspondence sent to the appellant in December 2006 only mentioned that the appellant may change his character of discharge or correct his military records by contacting the Service Department. There was no mention of the requirements for new and material evidence or evidence and information that is necessary to establish a claim of eligibility for VA benefits based on the character of discharge. Nor did the correspondence adequately notify the appellant of what evidence would be necessary to substantiate that element or elements required to establish the claim of eligibility for VA benefits based on the character of discharge that were found insufficient in the previous May 1979 denial. Therefore, the appellant should be provided with a proper notice letter that complies with the Court's holding in Kent. In addition, the RO/AMC should contact the National Personnel Records Center (NPRC) to obtain the appellant's personnel records as they may be relevant to his claim. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a notification letter, as defined by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), as it pertains to the matter of whether new and material evidence has been received to reopen his claim that the character of his discharge, for a period of service from January 1968 to April 1970, does not constitute a bar to the payment of VA benefits. The appellant should be provided correspondence which contains the applicable standard for the submission of new and material evidence. The letter should specifically discuss the bases for the denial of the appellant's claim that his character of discharge does not constitute a bar to the payment of VA benefits in the prior final RO decision as well as notify the appellant of the specific evidence and information that is necessary to reopen his claim regarding eligibility for VA benefits based on the character of discharge. Finally, the letter should provide the Veteran with the provisions of 38 C.F.R. § 3.12 pertaining to character of discharge. 2. Contact the NPRC and request the appellant's personnel records. If attempts to obtain these records are unsuccessful, this should be documented in the claims file and the appellant notified accordingly. As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2), the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The appellant should be notified of the RO's attempts to locate his records, as well as any further action to be taken. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2010). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).