Citation Nr: 1310099	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  10-31 147	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Whether new and material evidence has been received to reopen the issue of whether the character of the appellant's discharge is a bar to the award of Department of Veterans Affairs (VA) healthcare benefits under 38 U.S.C.A. Title 17.  


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel



INTRODUCTION

The appellant had active service from February 1968 to June 1971.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a April 2008 rating decision of the Chicago, Illinois, Regional Office (RO) which determined that the appellant's period of service from February 1968 to June 1971 was dishonorable for VA purposes and a bar to the award of healthcare benefits under 38 U.S.C.A. Title 17.  

This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  


REMAND

In reviewing an application to reopen a previously denied and final claim, the United States Court of Appeals for Veterans Claims (Court) has held that VA must notify a claimant of the evidence and information that is necessary to both reopen his claim and to establish his entitlement to the underlying claim for the benefit sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  In the instant appeal, the appellant has not been provided a Veterans Claims Assistance Act of 2000 (VCAA) notice which addresses either the basis for the prior June 2002 determination that the character of the appellant's discharge is a bar to the award of VA healthcare benefits or the evidence necessary to reopen his claim.  In this appeal, such evidence would consist of documentation of an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of 10 U.S.C.A. § 1552 (West 2002).  See 38 C.F.R. § 3.12(e) (2012) (providing that an honorable discharge or discharge issued through a board for correction of records that is established under 10 U.S.C. § 1552 is final and conclusive on VA, and sets aside any prior bar to benefits under 38 C.F.R. § 3.12(c)).  The United States Court of Appeals for the Federal Circuit (Federal 

Circuit) invalidated the regulations which empowered the Board to issue written notification of the VCAA to appellants.  Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003).  

Accordingly, the case is REMANDED for the following action:

1.  Review the record and ensure that all notification and development action required by the VCAA is completed.  The AMC should ensure that the notification requirements and development procedures for reopening claims are fully met.  Specifically, the Veteran should be notified of the basis for the June 2002 determination that the character of the appellant's discharge is a bar to the award of VA healthcare benefits, and of the information and evidence sufficient to substantiate those elements required to establish the appellant's claim are documentation of an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of 10 U.S.C.A. § 1552 (West 2002).  (See 38 C.F.R. § 3.12(e) (2012)).  

2.  Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the appellant's claim.  If the benefits sought on appeal remain denied, the appellant and his accredited representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board.  

The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).  



_________________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  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).