Citation Nr: 1335388 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-34 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of wounds to the right leg. 2. Entitlement to service connection for residuals of wounds to the left leg. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 26, 1966. The period of service from November 27, 1966 to October 9, 1975, is considered under conditions other than honorable and a bar to VA benefits. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA paperless claims processing system and Veterans Benefits Management system (VBMS) does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Residual wounds of the left leg did not manifest during service and are not related to any incident of honorable service. 2. Residual wounds of the right leg did not manifest during service are not related to any incident of honorable service. 3. The period of service from November 27, 1966 to October 9, 1975 is found to be other than honorable service for VA purposes and a bar to benefits. CONCLUSIONS OF LAW 1. Residual wounds of the right leg were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. Residual wounds of the left leg were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 3. The character of the Veteran's discharge from November 27, 1966 to October 1975 is a bar to VA benefits. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.12 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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). The June 2009 VCAA letter explained what evidence was necessary to substantiate the Veteran's claim of service connection for residual wounds of the left and right legs. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the June 2009 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claims and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received additional VCAA notice in a July 2009 letter. VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and his VA treatment records are of record. He did not identify any private treatment records. The Board notes that the Veteran has not been afforded VA examination to determine the nature and etiology of the claimed leg wound residuals. However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service-connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no competent and credible evidence of the claimed disorders during an honorable period of service. For these reasons, the Board finds that VA has complied with the VCAA notification and assistance requirements. The claim of service connection is ready to be considered on the merits. Law and Regulation Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran does not have an enumerated chronic disease. Thus, 38 C.F.R. 3.303(b) is not applicable. When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12(a) (2010). Regulations further provide that a discharge or release for certain offenses, including willful and persistent misconduct, are considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4) (2013). A discharge to reenlist is a "conditional discharge" if it was issued during the Vietnam era and was 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). Except as provided in (c) of this section, the entire period of service under the aforementioned circumstances constitutes one period of service and entitlement to VA benefits is determined by the character of the final termination of such period of active service. 38 C.F.R. § 3.13(b) (2013). Despite the fact that a conditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) the person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.13(c) (2013). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § (101(2)). A discharge under honorable conditions is binding on the Department of Veterans Affairs as to the character of discharge. 38 C.F.R. § 3.12(a) (2013). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran is shown to have periods of service between November 1963 and December 1964, and between December 1964 and January 1970, and between January 1970 and October 1975. Service personnel records reflect, that he was charged with being Absent Without Official Leave (AWOL) for a total of 1189 days from January 27, 1972 to February 7, 1972, and from June 8, 1972 to August 30, 1975. The Veteran was administratively discharged, under other than honorable conditions, for the good of the service in lieu of trial on October 9, 1975. In a June 1976 administrative decision, the RO determined that the discharge the Veteran received on October 9, 1975, covering his period of service from November 27, 1963 was a discharge not under conditions other than dishonorable and was a bar to VA benefits. Regardless, he has valid service for the period prior to November 27, 1966. In a January 2007 administrative decision, the RO determined that the Veteran completed his first obligated period of service, but did not honorably complete his six year obligated period for his first reenlistment or his six year obligated period for his second reenlistment. This decision determined that the period of service from November 27, 1966 to October 9, 1975 was a bar to VA benefits. Regardless, he only has valid service for the period prior to November 27, 1966. Service treatment records for the Veteran's service from November 26, 1963 to December 20, 1964, reflect no left leg or right leg complaints. On examination in September 1964 for discharge and immediate re-enlistment into service, the lower extremities were evaluated as normal. A December 1967 service treatment record indicates that the Veteran injured his right tibia and fibula in a helicopter accident. A January 1971 Report of Medical History notes a normal lower extremity evaluation. In the corresponding January 1971 Report of Medical History, the Veteran denied past, current, or recurrent bone, joint, or other deformity. Service treatment records are silent for any complaint, treatment, or diagnosis related to the left leg. In a November 2009 rating decision, the RO denied this claim for service connection for residual wounds of the left and right legs. In a June 2010 statement, the Veteran stated that the events that led to his dishonorable discharge did not occur until 1972. It was his assertion that he had "honorable service through at least 1970." As an initial matter, the Board notes that the Veteran does not contend that the residual wounds to his left and right legs are the result of combat. Thus, he is not entitled to application of the provisions of 38 U.S.C.A. § 1154(b) (West 2002). Additionally, the Board notes that the Veteran contends that he is in receipt of a Purple Heart and a Bronze Star. See June 2010 substantive appeal. His service personnel records and DD 214 forms do not reflect the receipt of a Purple Heart or Bronze Star. The Board reiterates that VA has determined that the character of service from November 27, 1966, to October 9, 1975, is a bar to VA benefits. The record reflects that there is no competent evidence showing a left or right leg injury during the Veteran's recognized service from November 26, 1963 to November 26, 1966. Service treatment records reflect that the injury to the right tibia and fibula occurred on December 20, 1967, more than a year after his valid service. The Veteran does not dispute the date of the in-service injury. Moreover, the service treatment records are silent for any injury to the left leg during any period of the Veteran's valid service. The character of discharge of the service from November 27, 1966, including the relevant date in December 1967, constitutes a bar to service connection on any basis for disability incurred in service after November 26, 1966. Therefore, service treatment records showing an injury to the right tibia and fibula in December 1967 were not during a recognized period of active service for VA benefits purposes. The Board has considered the Veteran's lay statements. We first note that he did not assert that he injured his left or right leg during a valid period of service which terminated in November 1966. Instead, the Veteran contends that his injury occurred in December 1967. The service treatment records during his valid period of service make no reference to a lower extremity injury. More importantly, when examined in September 1964, the lower extremities were determined to be normal. Furthermore when seen for evaluation in January 1971, evaluation of the lower extremities was again normal. Finally, his belief that he had valid service until 1970 is legally incorrect. See January 2007 administrative decision. If the Veteran wishes to apply for a review of his discharge to determine if the discharge was proper, he should contact the appropriate service department authority. Thus, given the fact that the Veteran had no injury to his left or right left during a period of service recognized by VA for benefits purposes, there is no basis under the law for granting the Veteran's claim of service connection for residual wounds to the left and right legs. Where, as here, the law is dispositive, the claim must be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The doctrine of reasonable doubt is not for application here as this issue is resolved as a question of law with no dispute or controversy regarding the factual record. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for residual wounds to the left leg is denied. Entitlement to service connection for residual wounds to the right leg is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs