Citation Nr: 1325251 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-12 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to eligibility for VA compensation benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Appellant served on active duty from August 1979 to June 1983. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2008 RO decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The RO in Cleveland, Ohio issued an administrative decision in March 1993, determining that the character of the appellant's discharge from service was a bar to VA compensation benefits. The Appellant testified before the undersigned during a Board hearing at the RO in March 2013. A transcript of the hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, to include the Board hearing transcript. FINDINGS OF FACT 1. In a March 1993 decision, the RO found that the Appellant was not eligible for VA compensation benefits as he received a Bad Conduct Discharge from service; he was thereafter notified of this action and apprised of his appellate right, but did not appeal. 2. The evidence received since the final decision in March 1993 is cumulative. The evidence does not raise a reasonable possibility of the substantiating the Appellant's claim. CONCLUSIONS OF LAW 1. The March 1993 RO decision finding that the Appellant is not eligible for VA compensation benefits is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). 2. The evidence received since the March 1993 decision is not new and material for the purpose of reopening the claim of entitlement to eligibility for VA compensation benefits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice is commonly referred to VCCA notice as it came out of legislation titled the Veterans Claims Assistance Act of 2000 (VCAA). (Codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO initially sent the Appellant a post-adjudication letter in March 1993 after the initial unfavorable decision, notifying the Appellant of his appeal rights and his right to file a request for a revision of the character of discharge determination. Following the Appellant's application to reopen, the RO notified the Appellant in an October 2008 letter of its decision denying the Appellant's eligibility for VA benefits. The October 2008 letter notified the Appellant that he had one year from this letter to appeal the decision. The RO also conducted a de novo review concerning the Appellant's eligibility and furnished a statement of the case in January 2010. In addition, during the March 2013 Board hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal (claim to reopen), identified potential evidentiary deficits, and clarified the type of evidence that would support the Appellant's claim. The VLJ left the record open for 60 days to allow for additional submission of evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Application to Reopen Generally, a claim which has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). The Board notes that the initial RO administrative decision in March 1993 found the Appellant's discharge to be under dishonorable conditions for VA purposes, thus a bar to receipt of VA benefits. As evidence, the RO considered the Appellant's DD Form 214 and various service personnel records, to include the Special Court Martial Order dated May 1981. The evidence showed that the Appellant was adjudged before a Special Court Martial where he was found guilty of willful and persistent misconduct, resulting in a Bad Conduct Discharge. Thus, under 38 C.F.R. § 3.12, the Appellant was found ineligible to receive VA benefits. The Board notes that the March 1993 RO decision is final. The Appellant neither appealed this decision nor submitted new and material evidence within the one year appeal period. See 38 C.F.R. § 3.156. Since the March 1993 rating decision, the Appellant sought to reopen his claim by submitting an application to reopen in September 2008. In its October 2008 decision, the RO reconsidered the decision regarding the Appellant's discharge from service. The RO decided that the Appellant's service for the period of August 1979 to June 1983 was not honorable for VA purposes based on the fact that the evidence showed that the Appellant was issued a Bad Conduct discharge as a result of a Special Court Martial proceeding. As such, the Appellant's character of discharge was a bar to VA benefits under the provisions of 38 C.F.R. § 3.12. More specifically, he had engaged in willful and persistent misconduct with the receipt of a Bad Conduct discharge. The evidence since the final March 1993 decision includes the service treatment records, service personnel records, post-service private treatment records, lay statements and hearing testimony from his Decision Review Officer (DRO) and Board hearings. After a careful review of the record, the Board finds that the evidence submitted since the March 1993 decision is merely cumulative of the evidence already of record. The RO in March 1993 denied the Appellant's eligibility to receive VA benefits on a legal basis per the provisions of 38 C.F.R. § 3.12, governing character of discharge. The Appellant was discharged in 1983 due to dishonorable conditions as he appeared before a Special Court Martial and found guilty of various offenses which resulted in the Bad Conduct Discharge. Thus, as the VLJ explained in the Board hearing, the Appellant would have needed to submit specific evidence to support his claim/defense of insanity in order to reopen his claim for entitlement to VA benefits. This is because insanity is essentially a valid legal defense for a dishonorable discharge with regards to payment of benefits. See 38 C.F.R. § 3.12. Instead, the Appellant submitted evidence demonstrating that he received post-service treatment for his acquired psychiatric disorders, which does not relate to an insanity defense or any basis to reopen the claim. Any new and material evidence would have to go towards supporting a finding that the Appellant was insane at the time he committed the acts in service which resulted in disciplinary actions. The evidence actually submitted in support of his claim does not go towards the insanity defense. Rather, the evidence goes to show the Appellant's extensive psychiatric history since service. The evidence does not establish current insanity or insanity in the past. His own lay pleadings are unsupported and are nothing more than an attempt to consider a different theory of entitlement. Such bare allegation does not constitute new and material evidence or establish a new claim. The Board also notes the assertion of valid service prior to his Bad Conduct discharge. This assertion is unsupported and again does not provide a basis to revisit the claim. Thus, reopening of the claim is not warranted. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet.App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). ORDER The application to reopen the claim of entitlement to eligibility for VA compensation benefits is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs