Citation Nr: 1334371 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-23 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether the character of the Veteran's discharge for the period of service from September 22, 1980 to March 6, 1984 is a bar to VA benefits. 2. Entitlement to service connection for residuals of a heat stroke. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active service from February 1972 to June 1972 and from November 1974 to March 1975. The Veteran also had subsequent service in the Army Reserves. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal of a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana that denied the Veteran's claim of entitlement to service connection for residuals of a heat stroke, and a July 2010 administrative decision of the RO that determined that the character of the Veteran's discharge for the period of service from September 22, 1980 to March 6, 1984 was a bar to VA benefits. In June 2008, the Veteran gave testimony at a hearing before a RO Decision Review Officer regarding the claim for service connection for residuals of a heat stroke. The transcript of such proceeding is in the claims folder. In March 2012, the Veteran gave testimony at a hearing before a RO Decision Review Officer regarding the character of his discharge. The transcript of such proceeding is in the claims folder. In September 2012, the Veteran submitted a document that indicated the Veteran may have been requesting either another hearing before a Decision Review Officer or a hearing before the Board at the local RO. In September 2013, the Veteran's service representative clarified in writing that because the Veteran had had a DRO hearing, he did not desire another RO hearing, and that there was no indication that the Veteran wanted a local hearing by the Board. It was stated that the Board should proceed with the Veteran's appeal. The Board therefore finds that there exists no outstanding request for a RO or Board hearing. FINDINGS OF FACT 1. During the period of service in the United States Army Reserves starting in 1980, the Veteran failed to report for training assemblies for at least 12 times without an excuse within a year by December 1981, was disciplined for unsatisfactory participation, was removed from his Reserve unit and placed into the individual ready reserve control group, and had no active participation from April 1982 to March 1984, when he was discharged. 2. There were no compelling circumstances to warrant the unauthorized absences, considering length and character of service exclusive of the period of frequent unauthorized absences and the reasons for the unauthorized absences. 3. The Veteran's failure to report as ordered without credible evidence of compelling circumstances constituted willful and persistent misconduct. 4. The Veteran was not insane during any part of his military service at issue. 5. VA disability compensation for residuals of a heat stroke based on service from September 1980 to March 1984 is barred as a matter of law. CONCLUSIONS OF LAW 1. The character of the Veteran's discharge from his service of September 22, 1980 to March 6, 1984 is a bar to benefits administered by the Department of Veterans Affairs. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12(b), (d)(4) (2013). 2. VA disability compensation for residuals of a heat stroke based on service from September 1980 to March 1984 is denied as a matter of law. 38 U.S.C.A. §§ 101, 5303 (West 2002); 38 C.F.R. §§ 3.1, 3.12 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- adjudication VCAA notice by letters, dated in February 2006 and March 2006 as to the claim for service connection for residuals of a heat stroke. The notice included the type of evidence needed to substantiate the claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was also apprised of the criteria for consideration in the assignment of a disability rating, and effective date, in the event of award of the benefit sought. In addition, as to the character of his discharge, the Veteran was notified in February 2010 that he should submit evidence to substantiate that he received a discharge that can be considered honorable. The notice included a copy of 38 C.F.R. § 3.12, pertaining to character of discharge. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. As for content of the VCAA notice, the documents complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, service personnel records, VA records, private medical records, and records from the Social Security Administration. In addition, the Veteran has submitted witness statements, and both he and his wife testified before a DRO in June 2008 and March 2012. The Veteran has asserted that while on Active Duty for Training in the Reserves, he suffered a heat stroke and was evacuated from the field in an Army helicopter to the base hospital at Fort Campbell, Kentucky. The service treatment records and personnel records do not refer to such an incident. Furthermore, the RO has made several attempts to locate records that would document such an event. This includes a negative response from the National Personnel Records Center in July 2006, a negative response in June 2006 from the Veteran's Reserve unit, and a negative response for medical records or medical evacuation records from the Fort Campbell Hospital in September 2009. In addition, in March 2009, VA contacted two private hospitals near Fort Campbell regarding records concerning the Veteran and the response was negative. The Board thus finds that the RO met the duty to assist regarding records of the Veteran being evacuated by helicopter to a hospital and the claims shall be decided on the evidence of record. The Board finds that all pertinent evidence and records pertaining to the heat stroke service connection claim and to the Veteran's discharge from the Army Reserve, including the Veteran's service personnel records, have been obtained or attempts to obtain such evidence have been made. Therefore, the Board finds VA has fulfilled the duty to assist as it relates to obtaining records from the reserves and from private medical facilities. 38 C.F.R. § 3.159. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. The provisions of 38 C.F.R. § 3.103(c)(2) require that the decision review officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the personal hearing on the service connection claim in June 2008, and the hearing in March 2012 regarding the character of discharge, the DRO noted the elements of each claim that were lacking. At the June 2008 hearing, the DRO highlighted the lack of records regarding a heat stroke. In a similar manner, at the March 2012 hearing, the DRO identified the issue surrounding the Veteran's separation in 1984. In both hearings, the DRO asked questions to ascertain the events surrounding the heatstroke and the events leading to the Veteran's discharge. The Veteran was assisted at the hearings by an accredited representative from the American Legion. Both hearings focused on the elements necessary to substantiate the claims, including his status as a Veteran for the period 1980-1984, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for higher disability ratings. With regard to the duty to suggest or solicit outstanding evidence to substantiate the claims, the DRO in June 2008 highlighted the need to substantiate or document the helicopter crash medical evacuation in service, and records from the American Red Cross. The DRO also solicited the availability of any outstanding discharge documents. The DRO confirmed records to be obtained based on identified private medical providers. In the March 2012 hearing, the DRO solicited information as to whether there was any outstanding evidence relevant to the heat stroke claim. Althought the DRO did not solicit information on outstanding evidence relevant to the issue of character of discharge, the Board finds that the Veteran has not been prejudiced by such defect. In this regard, the Board notes that the Veteran's representative questioned the Veteran and his spouse as to whether there existed any outstanding evidence. The Veteran and his spouse provided a negative response. Additionally, no pertinent evidence that might have been overlooked and that might substantiate the claim, including his status as a Veteran, has been identified by the Veteran or his representative. Therefore, the Board finds that no further action is required with regard to the duties set forth in 38 C.F.R. § 3.103(c)(2). General Legal Principles Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the whether the Veteran's service between 1980 and 1984 is a bar to VA benefits, and as to his claim for service connection for residuals of a heat stroke. The Veteran is not claiming service connection for heat stroke residuals for the period of active service from February 1972 to June 1972 or from November 1974 to March 1975. Rather, he asserts an incident while on active duty for training while a member of the United States Army Reserves has resulted in his current residuals of a heat stroke. The record establishes that the Veteran entered the reserves after his separation from active duty in March 1975. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1131. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see also Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). A "Veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefore under conditions other than dishonorable." 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). An individual seeking VA disability compensation based on active duty for training must establish a service-connected disability as a result of disability incurred in or aggravated during the period of active duty for training in order to achieve Veteran status and be entitled to VA disability compensation. Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). Further, the burden to establish "veteran" status for a claim based on a period of ACDUTRA or INACDUTRA is on the Appellant. Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010). Furthermore, when a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of Veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). See also Cropper v. Brown, 6 Vet. App. 450, 452 (1994) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) and 38 U.S.C.A. § 1110). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). A person seeking to establish Veteran status must do so by a preponderance of the evidence, and the benefit-of-the-doubt doctrine, 38 U.S.C.A. § 5107(b), is not applicable to that determination of status. See Aguilar, supra. The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Except as provided in 38 C.F.R. § 3.13(c), which the Board finds is not applicable in this particular instance, 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 service. 38 C.F.R. § 3.13(b). When a serviceman receives an other than honorable discharge, VA must decide whether the character of such discharge is honorable or dishonorable (not qualifying for VA benefits). Conditions under which an other than honorable discharge would be considered dishonorable, include willful and persistent misconduct. 38 U.S.C.A. §§ 101(2), 5303; 38 C.F.R. § 3.12(d). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). A discharge or release is considered to have been issued under dishonorable conditions where the discharge was given under other than honorable conditions if it is determined that it was issued because of willful and persistent misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). Because the charges that lead to the Veteran's discharge included his unexcused absence, a discussion of the regulations concerning a discharge due to unexcused absences or absent without leave (AWOL) is briefly warranted. By statute, benefits are not payable where the former service member was discharged or released by reason of a discharge under other than honorable conditions issued as a result of AWOL for a continuous period of at least 180 days unless the person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(b), (c)(6). The record reflects that the Veteran failed to report for Reserve duties for 12 separate meetings but this period of absence without official leave is well short of the 180 days required for the periods of AWOL to be considered to be prolonged. 38 C.F.R. § 3.12(c)(6). Therefore, the periods do not satisfy the regulatory requirement that an appellant's other than honorable discharge constitutes a bar to the payment of benefits under 38 C.F.R. § 3.12(c)(6) for AWOL. His periods of absence or failing to report for duty, however, are still relevant on the issue of willful and persistent misconduct. AWOL cannot constitute a minor offense for purposes of willful and persistent misconduct. See Stringham v. Brown, 8 Vet. App. 445, 448 (1995); Cropper v. Brown, 6 Vet. App. 450, 452, 453 (1994); Struck v. Brown, 9 Vet. App. 145, 153 (1996). To that end, why the Appellant was absent or failed to report must be examined. The Board can look at the totality of the circumstances, including factors other than his own statements. Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003). A discharge or release from service under conditions specified in 38 C.F.R. § 3.12(d) is a bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense causing such discharge. 38U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). An insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). Evidentiary Standards VA must give due consideration to the places, types and circumstances of such Veteran's service, as shown by his service record, history of each organization in which the Veteran served, medical records, and all pertinent lay and medical evidence, in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. Facts The Veteran asserts that he was serving in the Reserves during Active Duty for Training (ACDUTRA) sometime during the summer of 1983 when he suffered a heat stroke. His wife has stated that she later learned he had to be revived three times. The Veteran also asserts he was then evacuated by helicopter to a hospital. The Veteran believes both the helicopter and the hospital were connected to Fort Campbell Kentucky. The Veteran has provided witness statements from other reservists, A. G., A. R., and M. D., who reported they remembered the Veteran collapsed from heat stroke sometime in 1983. VA request for records regarding the helicopter evacuation and hospitalization have resulted in Fort Campbell and other Federal archives advising VA no records of the incident could be found. The Veteran also identified local hospitals, but those hospitals also advised VA they did not locate any records concerning the Veteran. The Veteran contends he now has several medical disorders related to or caused by the heat stroke incident, including a lesion or what he and his wife have characterized as a dead spot in his brain. In September 1983, or shortly after the time the Veteran asserts he suffered a heat stroke, the Veteran was diagnosed and treated for colon cancer. The records from the colon cancer treatment are of record but do not mention that the Veteran had recently suffered a heat stroke. He also asserts that the effects of the heat stroke and the subsequent cancer diagnosis and treatment prevented him from attending Reserve training exercises and his wife has testified that she called ahead of each of the meetings and explained that the Veteran's medical condition prevented him from attending. As noted above in the introduction, a July 2010 administrative decision of the RO determined that the character of the Veteran's discharge for the period of service from September 22, 1980 to March 6, 1984 was a bar to VA benefits. The Veteran seeks service connection for residuals of a heat stroke that he asserts occurred while on ACTDUTRA in 1983. Thus, the preliminary issue before the Board is whether the character of the Veteran's discharge for the period of service from September 22, 1980 to March 6, 1984 is a bar to VA benefits, including service connection for heat stroke residuals. In 1980, the reserves awarded a certificate of appreciation to the Veteran's family in 1980 for their role in his reserve service. In March 1980, the Veteran was promoted from Specialist Four to Specialist Five. In September 1980, the Veteran re-enlisted in the United States Army Reserves. The personnel records from the reserves indicate the Veteran, serving in an engineering battalion, successfully completed an explosives, demolitions, and mines course in May 1981. In June 1981, there was a note from a doctor stating the Veteran was in a hospital and would not be discharged until the end of the month. The reason for the hospitalization was not stated. The Board notes that it is from the same hospital where the Veteran was later diagnosed and treated for colon cancer. The Veteran has provided the records for the diagnosis and treatment of colon cancer. The records from the June 1981 hospitalization have not been provided. The Veteran received a favorable performance evaluation in August 1981. In January 1982, the Veteran's superior officer requested the Veteran be transferred from his regular unit due to unsatisfactory participation. He had accrued 12 unexcused absences. The record indicated that a notice of unsatisfactory participation was mailed to the Veteran at his last known address of residence in December 1981. His commanding officer found, in an undated document, there was no cogent or emergency reason which prevented the Veteran from attending a training assembly which resulted in the ninth unexcused absence. Another letter from the commanding officer noted the Veteran missed two training periods in November 1981 resulting in 12 unexcused absences within a year and therefore the commanding officer declared the Veteran an unsatisfactory participant and would initiate an action to separate the Veteran from his unit to the IRR (individual ready reserves) or discharge him from the Reserves. The notice to the Veteran was sent by certified mail but was returned to his unit undelivered. Prior notices and letters of the Veteran's failure to report for training assemblies are part of the record before the Board, including letters from September 1981, October 1981, and November 1981. The letters stated that if there was a reason such as a medical condition, he should submit an affidavit or certification from a doctor or other care provider stating the nature of the condition and requesting the absence be excused. In March 1982, a disciplinary board determined that the Veteran was undesirable for further retention in his unit because of misconduct-unsatisfactory participation. The Veteran was boarded in absentia. In April 1982, the Veteran was reassigned from his regular engineer battalion due to unsatisfactory participation and assigned to the United States Army Reserve Control Group (annual training). The April 1982 notice to the Veteran stated his service had been characterized as other than honorable conditions. That same month, he was reduced from a Specialist Five to a Private, Grade 2. In February 1984, the Veteran was reduced in rank from Private, Grade 2 to Private, Grade 1. In March 1984 the Veteran was discharged from the United States Army Reserves under other than honorable conditions. In December 2004, the RO was advised that the Veteran was assigned to the control group in the individual ready reserves and had no assignment to a unit or active participation, either ACTDUTRA or INACTDUTRA, from April 1982 to March 1984. In a statement by the Veteran's wife received by VA in June 2008, she stated that after the heat stroke incident in 1983, within a month after returning home, the Veteran was diagnosed with colon cancer and never went back for another reserve meeting. She stated she would call the unit or his sergeant to keep them informed. She stated the reserves then kicked him out and lowered his rank. Analysis After review of the record, the Board determines that the Appellant's service cannot be characterized as "other than dishonorable" for purpose of VA benefits. The Board determines too that the Appellant did not render faithful and meritorious service throughout the period of September 1980 to March 1984 and that the nature and quantity of the misdeeds in service leading to his discharge were willful and persistent. To the extent the Veteran points to his prior periods of active duty and his reserve service starting in 1975, the Board notes that it is the period of service starting in 1980 that is before the Board as that is the period that, after the Veteran re-enlisted in the reserves, the claimed injury or disease resulting in a disability allegedly occurred. See 38 U.S.C.A. §§ 1110, 1311. The evidence surrounding the Veteran's discharge from military service reflects that several of his acts that led to his discharge were the result of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). The acts consisted of several offenses covering several months of service, namely up to 12 instances where he failed to report for a training exercise. Although the regulation provides that if there is "a" (meaning one) minor offense, that it will not be considered persistent if service was otherwise honest, faithful and meritorious, that provision does not mean excusing a series of offenses. In this case, there was certainly not one minor offense, i.e., one time he failed to report as ordered, but 12 occasions, that is, more than once. There was a pattern of misconduct as shown by his persistent absence from duty and he failed to provide any excuse or compelling reason he could not attend. His absences or failures to report for duty when ordered cannot be characterized by regulation as a minor nor is it excused. Unauthorized absence is the type of offense that interferes with the performance of military duties and is not a minor offense. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). As an unauthorized absence does not constitute a minor offense and as the Veteran established a pattern of unauthorized absences, 12 times within a one year period, the Board finds that the Veteran's misconduct was willful, and persistent as he continued his periods of unauthorized absence after notice had been issue to the Veteran that he had unexcused absences and needed to present evidence of compelling reasons why the absences should be excused. Therefore, the Board finds no basis upon which to deem the Appellant's offenses minor or to otherwise find that such did not amount to willful and persistent misconduct. The discharge must be considered as having been under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). As to whether his service was meritorious, the term "meritorious" is not defined by regulation, but the general meaning of "meritorious" denotes "deserving praise or reward." "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. In the context of military service, a service member is expected and required to perform his duties in a satisfactory manner and to obey lawful orders. The multiple, unexcused absences reflect a quality of service that does not rise to a level that the Board equates to meritorious service, that is, service deserving praise or reward. Meritorious service based on length and character of service is therefore not established by the evidence of record. The Veteran has provided evidence of good service such as certificates of appreciation and evaluation reports that did occur within the relevant time period. Nevertheless, the Board does not find that the character or quality of the length of service was honest, faithful, and meritorious and of benefit to the Nation. The Veteran re-enlisted in September 1980 and within a year the Veteran started to miss Reserve training exercises when ordered and by December 1981, the commanding officer had determined that his participation was unsatisfactory. The Board notes that there were attempts to counsel the Veteran and advised him to provide documentation to the Reserves to explain his absence such as medical reports from a physician. The evidence also reflects that the Veteran had knowledge that he needed to do more than advise the Reserves why he could not report as required. The record contains a medical note from a physician for June 1981. That note only indicated the Veteran would remain hospitalized to the end of the month and did not indicate the nature of the illness or injury requiring hospitalization nor indicate a need for further treatment or convalescence. Thus, it may explain his absence in June 1981 but does not excuse or explain his failure to report at any time after June 1981. As for reasons for the repeated unauthorized absences, the Veteran states it all started when he suffered the heat stroke that now forms the basis for his underlying claim for service connection for the residuals of a heat stroke. He then states that shortly thereafter he was diagnosed with colon cancer and treatment prevented him from attending training exercises. The Veteran argues the two events, the heat stroke and the cancer diagnosis and treatment, constitute compelling reasons why he failed to report for duty. Both the Veteran and his wife state they advised the Reserves of the situation, but there is no evidence in the personnel records that this occurred. As noted above, although the record confirms that the Veteran was diagnosed with colon cancer in September 1983, the record does not contain any corroborating evidence made contemporaneously with the events at the time that the Veteran suffered a heat stroke requiring multiple resuscitations and evacuation to a hospital. As to the colon cancer, there is no evidence other than the statements by the Veteran and his spouse that his commanding officers in the reserves knew of his medical condition or that his physicians sent or prepared a report for the Reserves. The record does contain documents prepared by the commanding officers and other personnel of the reserves documenting the Veteran's failure to report for duty as ordered and examination of the documents do not reveal any irregularities and were also prepared the document in the course of performing their duties as members of the United States Armed Forces. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). Other than his statements, the Veteran has presented no evidence, objective, witnesses, or otherwise, to rebut the presumption of regularity. The Board finds the documents concerning his discharge to be genuine, having been created at the time of or near the events described and for official reasons, can presumed to be an accurate statement of the facts contained within the documents, and afforded greater probative value over the Veteran's statements. In contrast, the Board finds the Veteran's statements that he suffered a heat stroke and then developed medical problems as the reason he did not report for duty are not credible and assigns them little weight. The United States Supreme Court counsels that oral testimony in conflict with contemporaneous documentary evidence deserves little weight. United States v. United States Gypsum Co., 333 U.S. 364, 396, 92 L. Ed. 746, 68 S. Ct. 525 (1947). In addition, the Veteran's evidence is that the heat stroke occurred sometime in 1983 and the colon cancer occurred shortly thereafter in September 1983. The documentation, however, establishes that the Veteran failed to report for training exercises in 1981 and was dismissed for unsatisfactory participation in February 1982, well over a year before the occurrence of the events that the Veteran relies upon to excuse the acts of willful misconduct. As noted, the Veteran has not provided any justification for failing to report for duty at those time periods. The Board also finds no other evidence in the Veteran's education, cultural background and judgmental maturity that would be favorable to the Veteran. The Veteran does not argue and the record does not suggest that the bar to benefits should be overturned because the he was insane when he was absent or failed to report for duty. 38 U.S.C.A. § 5303(b), 38 C.F.R. § 3.12(b). Further the Board does not find any evidence that the Veteran had a valid legal defense and the record does not otherwise provide any reason for a valid legal defense, including insanity. In light of the foregoing, the Board finds that the Veteran has not met his evidentiary burden by a preponderance of the evidence to establish Veteran status for the period of service from September 1980 to March 1984. Service Connection for Residuals of a Heat Stroke Compensation may be awarded to a Veteran for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. The Veteran asserts his claim for service connection for heat stroke residuals arose only during the period of 1980 to 1984. In this instance, the Veteran's character of discharge under conditions other than honorable does not establish that the Veteran is legally entitled to status as a Veteran under 38 C.F.R. § 3.1(d) and 38 U.S.C.A. § 1101 and his claim of service connection for residuals of a heat stroke must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (Where the law and not evidence is dispositive, a claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law). ORDER The character of the Veteran's discharge for the period of September 1980 to March 1984 is a bar to benefits administered by the Department of Veterans Affairs, and the appeal is denied. Entitlement to service connection for residuals of a heat stroke is denied. ____________________________________________ U. R. Powell Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs