Citation Nr: 1304877 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-41 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether the character of the appellant's discharge from military service constitutes a bar to Department of Veterans Affairs (VA) benefits. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a heart disorder. 4. Entitlement to service connection for a psychiatric disorder. 5. Entitlement to a total disability rating based on individual unemployability. INTRODUCTION The appellant served in an active duty for training status from October 1977 to April 1978, and in an active duty status from May 1979 to October 1980. His DD Form 214 reflects the character of service as bad conduct. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which denied entitlement to service connection for back, heart, and psychiatric disorders, as well as entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. In July 2010 the RO issued an administrative decision finding that the character of the appellant's discharge precludes payment of any VA benefits. In addition to the paper claims file, there is an electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 In July 2010 VA determined that the appellant's entire military service, from the period of September 1977 to October 1980, was dishonorable for VA purposes and was therefore not eligible for VA benefits. The appellant was notified of this in a July 2010 letter. In a statement accompanying the appellant's September 2010 Form 9 substantive appeal to the other issues on appeal as well as in numerous subsequent letters to VA, the appellant clearly indicated his disagreement with VA's characterization of his discharge and expressed a desire to have the issue reviewed by the Board. These letters constitute timely notices of disagreement to the issue of character of discharge. See 38 C.F.R. § 20.201 (2012) (A notice of disagreement is defined as a written communication from the claimant or his representative that expresses dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result). The RO has not issued the appellant a statement of the case on this matter; thus, a remand is necessary to correct this procedural deficiency. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.26, 19.29, 19.30 (2012); Manlincon v. West, 12 Vet. App. 238 (1999). Since the outcome of the appellant's character of discharge determination could impact the appellant's claims of entitlement to service connection for back, heart, and psychiatric disorders, and his claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Board cannot fairly proceed in adjudicating the appellant's claims until any outstanding matter with regard to the appellant's character of discharge determination has been resolved. Accordingly, the case is REMANDED for the following action: Issue a statement of the case addressing the issue of whether the character of the appellant's discharge from military service constitutes a bar to VA benefits. The appellant is hereby notified that, following the receipt of the statement of the case concerning this issue, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, should this issue be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN 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 Veteran s 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) (2012).