Citation Nr: 1313694 Decision Date: 04/24/13 Archive Date: 05/03/13 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 appellant'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). REPRESENTATION Appellant represented by: Deanne L. Bonner, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, 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 appellant'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 provided the appellant with notice of his right to appeal and he did not appeal that determination. In an April 1997 letter, the RO again held that the appellant'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 provided the appellant with notice of his right to appeal and he did not appeal that determination. In an April 2006 determination, the RO again held that the appellant'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 appellant perfected an appeal of that denial. In March 2009, the appellant testified at a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In April 2009, the Board remanded the appellant's claim for additional development. In October 2011, the Board found that new and material evidence had not been received to reopen the claim regarding whether the appellant's character of 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), and the claim was denied. The appellant appealed the October 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted a Joint Motion for Remand, ordered that the Board's October 2011 denial of the claim be vacated and remanded to the Board for action consistent with the terms of the joint motion. The appeal has now been returned to the Board for action consistent with the terms of the joint motion. In March 2013, the appellant's attorney submitted additional evidence and argument, accompanied by a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The appellant contends that his discharge from service in January 1972 is not a bar to VA benefits and that his VA compensation benefits that were terminated in an August 1973 determination should be reinstated. As set out in the introduction, the claim was denied by the Board in October 2011, but that decision was vacated by the Court in August 2012 and remanded to the Board for action consistent with the terms of the Joint Motion for Remand. In the August 2012 Joint Motion, the parties agreed that a remand is required in accordance with the Court's precedent in Stegall because the Board failed to ensure that development undertaken in this case was in compliance with the terms of the Board's April 2009 remand. Specifically, the RO did not contact the service department and seek clarification as to whether the character of the appellant's discharge from service for the period of active duty from February 25, 1970, to January 17, 1972, is currently considered to be "under honorable conditions" or "under other than honorable conditions." As such, the parties agreed that a remand is required. The August 2012 Joint Motion explained that on remand, the Board should ensure compliance with its April 2009 remand and make certain that the RO contacts the service department to attempt to rectify the conflicting information regarding the character of the appellant's discharge from service. It was noted that not only has VA obligated itself to obtain records in the custody of a Federal department or agency, but it must also make as many inquiries as necessary and "end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile." 38 C.F.R. § 3.159(c)(2). In light of the August 2012 Joint Motion for Remand and Court Order, the Board finds that the claim must be remanded for the purpose of ensuring compliance with the April 2009 remand requesting that the RO contact the service department and seek clarification as to whether the character of the appellant's discharge from service for the period of active duty from February 25, 1970, to January 17, 1972, is currently considered to be "under honorable conditions" or "under other than honorable conditions." The Board acknowledges that the appellant's attorney submitted additional evidence and argument in March 2013. In the March 2013 brief, the appellant's attorney claimed that VA's continued denial to reopen the appellant's claim regarding whether his character of discharge from service is a bar to VA benefits is clear and unmistakable error (CUE). Alternatively, she reiterated that the Board is obligated to comply with the Joint Motion for Remand granted by the Court. To ensure that the record is fully developed to the extent possible, and to ensure compliance with both the April 2009 Board remand and the August 2012 joint motion; however, the Board finds that the claim must be remanded so that the RO may contact the service department to rectify the conflicting information as to the character of the appellant's discharge from active duty for the period of February 25, 1970 to January 17, 1972. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the service department; inform the service department that in July 1978 the Army Discharge Review Board did not affirm the Department of Defense Special Discharge Review Program's upgraded discharge from under other than honorable conditions to under honorable conditions; and ask the service department for clarification on whether the character of discharge for the appellant's period of active duty dating from February 25, 1970 to January 17, 1972, is currently considered to be under other than honorable conditions or whether character of discharge is currently considered to be under honorable conditions. Any response received should be documented in the claims file. If any federal records or documents cannot be located, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant and his attorney of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant and his attorney must then be given an opportunity to respond. 2. After the development requested above has been completed to the extent possible, and after undertaking any additional development deemed necessary, the RO should again review the record and readjudicate the issue on appeal. If the decision remains unfavorable to the appellant, provide a supplemental statement of the case to the appellant and his attorney. An appropriate period of time should be allowed for response. Thereafter, the case must be returned to the Board, if in order. 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 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. 2012). _________________________________________________ DAVID L. WIGHT 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) (2012).