Citation Nr: 1316075 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-37 632 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Whether new and material evidence has been presented to reassess whether the character of the appellant's discharge is a bar to VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The appellant had active military service from June 13, 1968 to June 26, 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2008 rating action. The Board must note that in reviewing this case the Board has not only reviewed the appellant's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The appellant's claim was denied in October 1978 as it was determined that the character of his discharge was a bar to the receipt of VA benefits. 2. The appellant did not appeal this decision or submit new and material evidence within the appeal period. 3. The appellant has not presented any new and material evidence since the 1978 decision that would warrant reopening the issue of the characterization of his discharge. CONCLUSIONS OF LAW 1. The November 1978 administrative decision, which concluded that the appellant's character of discharge was a bar to the receipt of VA benefits, is final; 38 U.S.C.A. § 4004(b) (West 1976); 38 C.F.R. §§ 3.104, 3.156(a), 19.118, 19.153 (1978). 2. New and material evidence has not been submitted, and the appellant's claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The appellant's claim that the character of his discharge did not bar his receipt of VA benefits was denied in a November 1978 administrative decision. The appellant was advised of his right to appeal, but he failed to do so. The appellant also failed to submit any new and material evidence within the relevant appeal period. As such, the administrative decision became final. 38 U.S.C.A. § 4004(b) (West 1976); 38 C.F.R. §§ 3.104, 3.156(a), 19.118, 19.153 (1978). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decisionmakers. 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. At the time of the November 1978 rating decision, the evidence of record included service personnel records showing that the appellant had gone AWOL on several occasions during service (including from December 28, 1969 to January 7, 1970 and from February 20, 1970 to May 6, 1970), a staff judge advocate's review noting that the appellant had agreed to be discharged and had acknowledged committing a offense which rendered him triable by court-martial; a May 1970 letter from the appellant requesting discharge and acknowledging that he would receive an undesirable discharge that would deprive him of all rights to VA benefits; a discharge letter indicating that the appellant was being discharged for the good of the service for conduct which rendered him triable by court-martial; and a DD-214 showing that the appellant was initially discharged under conditions other than honorable. In 1972, the appellant filed for VA education benefits, but it was determined in an administrative decision in February 1972 that he was not eligible on account that his discharge was for willful and persistent misconduct. Thus, because the appellant was separated from the military under dishonorable conditions, he was not entitled to receive and VA benefits as a result. Several years after the 1972 determination, the appellant applied to have the character of his discharge upgraded, and a DD-214 shows that the appellant's character of service was changed to under honorable conditions by a Department of Defense Special Discharge Review Program (SDRP) in November 1977. This change was made effective as of November 21, 1977. However, the SDRP subsequently undertook a review of the appellant's discharge upgrade in June 1978, determining that the previous Department of Defense upgrade was not in fact warranted. The appellant was informed that any VA benefits he received on or after April 8, 1978 based on his upgraded discharge would have to be repaid. The appellant was provided a period of time to contest this determination and to request a personal hearing, but he did not contest it. VA then rendered an administrative decision in November 1978 which concluded that the appellant's service discharge for willful and persistent misconduct remained a bar to VA benefits. However, the appellant was informed that he was still eligible receive health care for any disability deemed service connected. As noted, this decision is final. To reopen that decision, and consideration of whether the character of the appellant's discharge is a bar to VA benefits, the appellant must submit new and material evidence. Unfortunately, he has not done so. In March 2008, the appellant filed a claim seeking non-service connected pension benefits, but he did not provide, and has not since provided, any new and material evidence as to why he should be considered to be eligible for VA benefits in light of the previous determinations as to the characterization of his discharge. The appellant provided information as to why he was entitled to non-service connected pension, but that evidence is not relevant until he can establish that the character of his discharge does not bar him from receiving VA benefits. The appellant once again submitted a copy of his "upgraded" DD-214, but this document was of record when his claim was denied in 1978 and is therefore not considered to constitute new evidence. The appellant also met with a Decision Review Officer (DRO) for an informal hearing in May 2009. Here, the appellant was given the opportunity to submit additional evidence, that had not been previously considered. He was informed that this could include statements by relatives, friends, and/or fellow service members that might provide mitigating circumstances. However, he did not submit any additional evidence at that time. In a July 2009 substantive appeal, the appellant asserted that he was never told he was getting out in lieu of a court martial. Testimony is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decisionmakers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." However, here, the mere statement that the appellant did not know he was being discharged in lieu of a court martial is found to be incredible on its face, as he signed multiple documents during service acknowledging the fact that he was being discharged with the admission that he had committed an offense triable by court martial, and it is therefore not considered to be material evidence. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Moreover, whether or not the appellant knew he was accepting discharge to avoid court martial is ultimately immaterial to the determination in this case, as the character of his discharge was based on a finding of willful and persistent misconduct. The fact remains that the appellant has not provided any evidence that would suggest in any way that the determination as to the characterization of his discharge should be changed. For that reason, the appellant's claim is not reopened, and it is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to applications to reopen, the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. Specifically, VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as notified of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit in light of the specific bases for the prior denial of the claim. In the present case, the appellant was informed in a June 2008 letter that in order to reopen his claim, he needed to provided new and material evidence regarding the characterization of his discharge. It was also explained what new and material meant. Moreover, the appellant was provided with information as to how to reopen and ultimately substantiate his claim at his DRO hearing. The Board finds that any defect concerning the timing of the notice requirement was harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Although the notice provided to the appellant was not given prior to the first adjudication of the claim, he has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the appellant's claim was readjudicated following completion of the notice requirements. Moreover, given the information provided at the DRO hearing, it is clear that the appellant has actual knowledge of what the evidence must show to justify reopening his claim. In any event, the appellant has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The appellant has had nearly five years to present evidence since receiving the June 2008 letter, but he has failed to present any meaningful evidence. Moreover, neither the appellant, nor his representative, have suggested any prejudice. Thus, adjudication of his claim at this time is warranted. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service personnel records have been obtained, and the appellant testified at an informal RO hearing. He was also offered the opportunity to testify at a hearing before the Board, but he declined. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the appellant's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER The appellant's claim is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs