Citation Nr: 1323362 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-39 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen the issue of the character of the Appellant's discharge from military service. 2. Whether the character of the Appellant's discharge from military service is a bar to benefits administered by the Department of Veterans Affairs. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Appellant served on active duty from February 1971 to October 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 Administrative Decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2010 in the statement of the case, the RO considered the Appellant's claim for VA benefits on the merits, effectively reopening the claim. The Board, however, cannot ignore jurisdictional matters, and it must independently determine if claim was properly reopened. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In May 2011, the Appellant appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the record. The reopened issue of whether the character of the Appellant's discharge from military service is a bar to VA benefits is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In an administrative decision in May 2000, the RO determined that the character of the Appellant's discharge from military service was a bar to the receipt of VA benefits other than health care benefits under 38 U.S.C. Chapter 17; after the Appellant was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Appellant. 2. The additional evidence since the administrative decision in May 2000 relates to an unestablished fact necessary to substantiate the claim that the Appellant had a qualifying period of honorable service for VA benefits. CONCLUSION OF LAW The criteria to reopen the issue of the character of the Appellant's discharge from military service have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim is reopened, which is the part of the appeal decided, further discussion of VCAA compliance is not necessary. REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural History and Evidence Previously Considered In May 2000 in an administrative decision, the RO determined that the Appellant could not receive VA benefits, because his discharge from military service for period from February 1971 to October 1973 was under other than honorable conditions due to willful and persistent misconduct. After the Appellant was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the adverse decision and no new and material evidence was received by VA within one year from the date that the RO mailed notice of the determination to the Appellant, and the decision by the RO became final on the basis of the evidence then of record. 38 U.S.C.A. § 7105. The evidence of record were military personnel records. Current Claim to Reopen A determination by the RO becomes final, if not appealed within one year of the date of the notice of the adverse determination, except a claim previously denied by the RO may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108, 7105. As the Appellant's claim to reopen was received in August 2008, after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies. New evidence means existing evidence not previously submitted to agency decision makers. 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(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Additional Evidence and Analysis A previously denied claim of service connection may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The additional evidence presented since the administrative decision in May 2000 consists in pertinent part of the Appellant's testimony, and a copy of a corrected DD Form 215, which shows that the Appellant was separated from service on December 27, 1972, and Army personnel records, including a reenlistment contract that shows the Appellant reenlisted for his present duty assignment in December 27, 1972, with an honorable discharge. This evidence is new and material under 38 C.F.R. § 3.156, because it suggests a period of military service for which the Appellant received an honorable discharge, the absence of such evidence, resulted in the previous denial of the claim. Therefore, the issue of whether the character of the Appellant's discharge from military service is reopened. ORDER As new and material evidence has been presented, the issue of whether the character of the Appellant's discharge from military service is a bar to benefits administered by the Department of Veterans Affairs is reopened and, to this extent only, the appeal is granted. REMAND As the RO has not considered in the first instance whether the Appellant had qualifying honorable service from February 1971 to December 1972, the case is REMANDED for the following action: Adjudicate the issue of whether the Appellant had a period of qualifying honorable service from February 1971 to December 1972 on the basis of reenlistment, including the issue of whether the additional service personnel records should be considered without regard to finality of the prior adverse determination, applying 38 C.F.R. § 3.156(c)(1)(i), (ii) and (2). If any benefit sought is denied, furnish the Appellant and his representative a supplemental statement of the case and return the case 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). The 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs