Citation Nr: 1335542 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-37 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen the question of whether the character of the appellant's discharge remains a bar to VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant had active service from October 1966 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 administrative decision by the Regional Office (RO), which found that the character of the appellant's discharge from service remained a bar to VA benefits. FINDINGS OF FACT 1. An unappealed September 1985 Administrative Decision denied the appellant entitlement to VA benefits, based essentially on findings that his discharge (upgraded from under than honorable conditions to a general discharge under honorable conditions) by reason of being absent without leave for a continuous period of more than 180 days constituted a bar to VA benefits; a May 1997 decisional letter continued to deny the claim. 2. Evidence received since the September 1985 Administrative Decision, and May 1997 decisional letter, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim; or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 1985 Administrative Decision, and the May 1997 decisional letter, that denied the appellant entitlement to VA benefits, are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013). 2. New and material evidence has not been received since the last final decision on the claim for entitlement to VA benefits, so the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) (West 2002)) redefined VA's duty to assist a claimant 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) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must the claimant of the evidence and information that is necessary to establish his entitlement to service connection. In that regard, the Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with 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. Where the issue involves the character of a veteran's discharge, VCAA must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). In this case, the Board finds that all required VCAA notice was furnished to the appellant. The record shows that in a February 2012 letter, the appellant was informed that VA compensation benefits would require resolution of the question of whether his service was honorable and the character of his discharge. The letter also informed the appellant of the reasons for the prior denial in accordance with Kent, and advised the appellant to submit any evidence in support of his appeal. The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for any grant of service connection. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file includes the service treatment and personnel records, and lay statements from the appellant. The Board notes that it is aware of the appellant's representative's argument that the appellant's personnel records are incomplete as VA has failed to obtain his enlistment paperwork to determine the length of his term of service. In this regard, the Board notes that the appellant's personnel records show that his term of service was three years from October 1966. However, this case is nuanced by the fact that the appellant was subject to a special court-martial in June 1969 for multiple violations, and was sentenced to confinement at hard labor for six months, which exceeded the length of his term of service. Prior to the completion of the sentence, in November 1969, the appellant went AWOL, the period for which is the basis for the bar of the appellant's entitlement to VA benefits, thereby rendering the entire period of the appellant's active service as one single period of active duty. To the extent the appellant's representative argues that there are incomplete personnel records as his enlistment paperwork is not of record, the Board finds such argument is without merit because the personnel records associated with the claims file document the length of his term of service, and there is no evidence to suggest that there are additional personnel records not yet associated with the claims file. In sum, the appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). B. Legal Criteria, Factual Background and Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (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, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. By way of background, the Board observes that the RO denied the appellant entitlement to VA benefits in a September 1985 Administrative Decision on the basis that his discharge (upgraded by an April 1977 Army Discharge Review Board from under other than honorable conditions to a general discharge under honorable conditions) by reason of being absent without leave for a continuous period of more than 180 days constituted a bar to VA benefits. He did not appeal this decision and, as such, it became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Such decision was continued in an unappealed May 1997 decisional letter. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the appellant's claim for entitlement to VA benefits was received prior to the expiration of the appeal period stemming from the September 1985 Administrative Decision or the May 1997 decisional letter. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The instant claim for entitlement to VA benefits was received in May 2006. The evidence at the time of the September 1985 Administrative Decision and May 1997 decisional letter includes the appellant's service treatment and personnel records, an April 1977 letter from the Army Discharge Review Board upgrading the appellant's discharge from under other than honorable conditions to general discharge under honorable conditions, and August and September 1985 correspondence from the appellant. In his August 1985 correspondence, the appellant conceded that after his service in Vietnam (from June 1967 to June 1968), he was sentenced to six months of hard labor (in June 1969, i.e., a year after his service in Vietnam). He stated that after Vietnam, things just fell apart and/or he just could not adjust after Vietnam. He also provided a report that after Vietnam, he went to a little girl's home to return a bracelet and a separate small girl climbed on his truck, and when he drove off, she fell off the back. He related he was unaware of the girl falling off, but immediately went to the military police station upon becoming aware of the situation. He stated that the girl's father was a colonel and threatened him with jail. He reported he asked his commander for leave, his commander gave the approval, and he left for four-and-a-half to five years. In his September 1985 correspondence, the appellant contended that all of the dates listed on his DD Form 214 as AWOL were not all correct. The evidence added to the record since the September 1985 Administrative Decision and May 1997 decisional letter include his August 2006 notice of disagreement, wherein the appellant stated that his discharge had been upgraded from a dishonorable discharge to a general discharge under honorable conditions by a Discharge Review Board in 1976. The evidence also includes the appellant's November 2007 VA Form 9, in which the appellant argued that he had compelling circumstances to warrant his prolonged unauthorized absence. Specifically, he stated that during his active service in Vietnam, he was exposed to a significant amount of stress and pressure that left him permanently scarred, and the transition upon his return from Vietnam was not easy and he could not adjust to life after Vietnam. To the extent the appellant contends that he was exposed to a significant amount of stress and pressure in Vietnam, and that he had a lot of difficulty adjusting after his active service in Vietnam, such is presumed credible. Justus v. Principi, 3 Vet. App. 510 (1992). While the Board is sympathetic to the appellant's situation and his contention, nonetheless, his argument is cumulative and redundant of his previous August 1985 correspondence, wherein he also stated that he could not adjust after his active service in Vietnam. The appellant has submitted no other new evidence so as to reopen his claim. As he has not submitted any new and material evidence to reopen his claim, even in recognition of Shade, 24 Vet. App. at 117-18, his claim must be denied. ORDER As new and material evidence has not been received to reopen the question of whether the character of the appellant's discharge remains a bar to VA benefits, the appeal is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs