Citation Nr: 1343058 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-22 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether new and material evidence has been received to reopen the issue of whether the appellant's character of discharge from service is a bar to VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The appellant had active service from June 1975 to October 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In December 2011, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that the character of the Veteran's active service was found to be dishonorable for VA compensation purposes in a September 1980 decision, which the Veteran did not appeal. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013). Thus, the issue of the character of the Veteran's service can only be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (Board must determine independently whether new and material evidence has been presented to reopen a claim as a jurisdictional matter, irrespective of decision of RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The September 1980 administrative decision by the RO, which a review of the claims file indicates was mailed to him, found that the character of the Veteran's period of service from June 1975 to October 1979 was a bar to VA benefits was not appealed. A previous and final denial of such a claim is subject to reopening under the provisions of 38 U.S.C.A. 5108. D'Amico v. West, 209 F. 3d 1322 (Fed. Cir. 2000). Thus, the issue is properly characterized as whether the Veteran has submitted new and material evidence to reopen the issue of whether the character of discharge from active service is a bar to VA benefits. The appellant should be provided with notice of the reasons for the prior denial, what is required to reopen the issue on appeal and how VA determines the character of service. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dennis v. Nicholson, 21 Vet. App. 18 (2007); Kent v. Nicholson, 20 Vet. App. 1 (2006). The appellant was issued two separate service separation forms. The first shows that he had service from June 19, 1975, to December 28, 1978, which he contends was honorable, and which is shown as honorable on the service separation form. That form indicates that he separated for immediate reenlistment. The second service separation from for service from December 29, 1978, to October 9, 1979, shows a character of service of under other than honorable conditions due to misconduct. The determined that since the appellant was not eligible for complete separation from service on December 28, 1978, that his entire period on appeal is not honorable for VA purposes. However, there is no documentation from the service department as to the Veteran's eligibility for separation on December 28, 1978. On remand, documentation should be requested from the service department. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a notice letter which informs him of how VA determines the character of discharge, the elements of new and material evidence, and the reasons for the prior final determinations of dishonorable service. Kent v. Nicholson, 20 Vet. App. 1(2006). 2. Request service department verification as to whether the appellant was qualified for complete separation from service on December 28, 1978. All responses should be associated with claims file. 3. Then, readjudicate the claim. If the decision remains adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).