Citation Nr: 1324428 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-16 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a decision that the character of the appellant's discharge constitutes a bar to Department of Veteran's Affairs benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The appellant served on active duty from November 27, 1967 to January 2, 1969 and received an honorable discharge with an immediate reenlistment. He again served on active duty from January 3, 1969 to June 3, 1971 and was discharged under other than honorable conditions. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The appellant served on active duty from November 27, 1967 to January 2, 1969 and received an honorable discharge with an immediate reenlistment January 3, 1969 to June 3, 1971. He was discharged under other than honorable conditions. 2. A December 1971 Administrative Decision found the character of the appellant's period of service from November 1967 to June 1971 to be a bar to VA benefits. The appellant was notified of the decision in January 1972, and he did not appeal. 3. A January 1987 Administrative Decision found that the appellant's service was dishonorable and a bar to VA benefits for which an honorable discharge is a prerequisite. The appellant was notified of the decision in January 1987 and he did not appeal. 4. The appellant has not presented any new and material evidence since the January 1987 decision that would warrant reopening the issue of the characterization of his discharge. CONCLUSIONS OF LAW 1. The January 1987 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. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). 2. Evidence received since the January 1987 Administrative Decision is not new and material to reopen the claim as to whether the character of the appellant's discharge is a bar to VA benefits. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In addition, the Board points out that there are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). One such claim is where, as here, there is no dispute as to the facts, and the law is dispositive. Mason v. Principi, 16 Vet. App. 129. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, with respect to the claim that the character of the appellant's discharge is not a bar to VA benefits, the Board concludes that no further action is necessary under the VCAA, since all evidence needed to adjudicate the claim is of record. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of an application for reopening, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Id. at 11-12. The Court elaborated that VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. In this case, a January 2010 letter provided the appellant with notice of the reason for the prior denial, as well as what evidence would constitute new and material evidence. Moreover, the appellant has shown that he has actual knowledge of what is required to reopen his claim and establish eligibility for VA disability benefits. The appellant has submitted written statements as well as hearing testimony that indicates he is aware that the reason for the denial of his claim pertains to the character of his service. The Court has held that actual knowledge of the evidence needed to substantiate a claim is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The Board finds that the appellant has demonstrated actual knowledge of the information and evidence needed to reopen and substantiate the claim. Analysis Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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(a). The VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Initially the Board notes that the appellant served on active duty from November 27, 1967 to January 2, 1969 and received an honorable discharge with an immediate reenlistment January 3, 1969 to June 3, 1971. The service department determined that since he was not eligible for complete separation on January 2, 1969 this is considered to be one continuous period of service. He was discharged under other than honorable conditions. A discharge to reenlist is a conditional discharge if it was issued during the Vietnam era (from August 5, 1964, through May 7, 1975), prior to the date the person was eligible for discharge under the point or length of service system. 38 C.F.R. § 3.13(a)(2) (2012). Under these circumstances, the entire period of service constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service. 38 C.F.R. § 3.13(b) (2012). The evidence of record at the time of the determination in December 1971 included service treatment records, service personnel records, and a VA examination report of August 1971. The service personnel records showed that the appellant was discharged because of frequent incidents of discreditable nature with military authority. There was no indication of a psychiatric disorder in service. He received several article 15's for assault, disobedience, sleeping on guard duty, being AWOL from November 1969 to March 1971, disrespecting an NCO and breaking restrictions. VA examination showed passive aggressive personality. The RO determined that VAR 1012 states that a discharge because of willful and persistent misconduct will be considered a dishonorable discharge and that the very nature and frequency of the incidents of discreditable nature show willful and persistent misconduct. It was concluded that the appellant's discharge under conditions other than honorable is considered to be dishonorable and is a bar to benefits. The appellant did not appeal the decision and it became final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). The appellant applied for pension benefits in September 1986. Evidence added to the record since the December 1971 determination included a copy of a page from a December 1971 VA report addressing orthopedic complaints, and a DD Form 149 Application for Correction of Military or Naval Records in which the Appellant requested his discharge be upgraded. It was concluded in a January 1981 determination that the appellant's discharge under conditions other than honorable is considered to be dishonorable and is a bar to benefits. The appellant did not appeal the decision and it became final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). The appellant submitted a claim for service connection asbestosis and Agent Orange exposure in April 2008. In a November 2008 determination, the RO found that the appellant's discharge under conditions other than honorable is considered to be dishonorable and is a bar to benefits. This appeal ensued. Evidence submitted since the last final denial in January 1987 consists of copies of some service treatment records, copies of some service personnel records and hearing testimony before the undersigned Acting Veterans Law Judge. The copies of service records are not new-rather they are copies of records previously of record at the time of the prior denial. Thus they are duplicative of evidence previously in the file. The Board acknowledges that June 2011 hearing testimony is new. The appellant discussed his reasons for being AWOL and his psychiatric complaints. However the testimony presented by him and his spouse is not material inasmuch as it is cumulative or duplicative of the previous contentions of the appellant and do not show the appellant's discharge was anything other than under conditions other than honorable. The additional evidence does not raise a reasonable possibility of substantiating the claim. The bar to VA benefits imposed as a result of his original discharge under other than honorable conditions is still in effect. Under these circumstances, the Board must find that new and material evidence to reopen the claim as to whether the character of the appellant's discharge represents a bar to payment of VA disability compensation benefits has not been received. As such, the January 1987 determination remains final, and the appeal must be denied. ORDER New and material evidence has not been received to reopen the appellant's character of discharge determination, and the appeal is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs