Citation Nr: 1428629 Decision Date: 06/24/14 Archive Date: 07/03/14 DOCKET NO. 97-17 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUES 1. Whether the character of the Veteran's discharge from his period of active service from March 1961 to March 1962 constitutes a bar to Department of Veterans Affairs (VA) benefits based on that period of service. 2. Entitlement to service connection for a chronic left foot disorder to include post-operative hammertoe residuals and hard corns. 3. Entitlement to service connection for a chronic right foot disorder to include hard corns. 4. Entitlement to a chronic respiratory disorder, to include reactive airway disease, allergic rhinitis, and asthma, claimed as due to tobacco dependence. 5. Entitlement to service connection for a chronic acquired psychiatric disorder to include dysthymia. 6. Entitlement to service connection for chronic laryngopharyngitis due to gastroesophageal reflux (GERD). 7. Entitlement to service connection for bilateral hearing loss. 8. Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from June 1956 to May 1959. Additionally thereafter, the Veteran had a separate period active service in the United States Army from March 1961 to March 1962, which was characterized as being under other than honorable conditions. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 1996 rating decision of the Phoenix, Arizona, Regional Office, which denied service connection for post-operative left foot hammertoe residuals and hard corns, right foot hard corns, reactive airway disease with allergic rhinitis and asthma, dysthymia, chronic laryngopharyngitis due to GERD, bilateral hearing loss, and tinnitus. Also on appeal is a May 1996 VA administrative decision, in which the Phoenix, Arizona, Regional Office determined that the Veteran's discharge under other than honorable conditions for the period of active service from March 3, 1961, to March 23, 1962, constituted a bar to payment of VA benefits. In July 2001, the Veteran informed VA that he now resided in Thailand. In an October 2002 appellate decision, the Board determined that the Veteran was discharged from his period of active service from March 1961 to March 1962 under dishonorable conditions and the character of that discharge constituted a bar to VA benefits based on that period of service. Additionally, the Board denied service connection for post-operative left foot hammertoe residuals and hard corns, right foot hard corns, reactive airway disease with allergic rhinitis and asthma, dysthymia, chronic laryngopharyngitis due to GERD, bilateral hearing loss disability, and tinnitus. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2006, the Court determined that the Board had failed to afford the Veteran a requested hearing before a Veterans Law Judge; vacated in its entirety the October 2002 Board decision; and remanded the Veteran's appeal to the Board so that he could be scheduled for the requested hearing. In January 2008, the Board remanded the Veteran's appeal to the Phoenix, Arizona, Regional Office for additional corrective procedural action. In January 2010, the Veteran's claims files were transferred to the Pittsburgh, Pennsylvania, Regional Office. The case was subsequently returned to the Board in January 2012 without providing the requested hearing before the Board. The Veteran thereafter submitted correspondence clarifying that he still desired a Board hearing and the case was remanded to the Appeal Management Center in Washington, D.C., in August 2012, so as to arrange for a videoconference hearing between the Board and the Veteran. The Washington, D.C., VA Regional Office (RO) is presently the agency of original jurisdiction over this appeal. Although the Veteran remains an American expatriate residing in Thailand, VA took advantage of an opportunity to provide the Veteran with his requested Board hearing during his recent visit to the United States, arranging for the Veteran to appear at the Phoenix, Arizona, Regional Office, to present oral testimony in support of his appeal before the undersigned Veterans Law Judge at a May 2014 videoconference hearing. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. The Board notes that at the Veteran's May 2014 hearing, he presented oral statements indicating that he was seeking service connection for a disability of an unspecified hand. As this issue has not been adjudicated in the first instance by the agency of original jurisdiction, the Board does not have jurisdiction over it, and it is referred to the agency of original jurisdiction for appropriate action. 38 C.F.R. § 19.9(b) (2013). At this juncture, the Board observes that the Veteran has submitted correspondence containing arguments using language asserting that VA adjudicators committed "clear and unmistakable error" (CUE) in deciding his claims. Inasmuch as the Veteran coaches his arguments in such language, he is advised that these statements do not raise a CUE claim as there has not yet been finality with respect to any decision addressing the present matters on appeal and therefore raising a CUE claim at this time is both premature and inappropriate. See Fugo v. Brown, 6 Vet. App. 40 (1993) At the May 2013 hearing, the undersigned Veterans Law Judge advanced the appeal on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. The appellant was discharged from his second period of service, from May 1961 to May 1962, under dishonorable conditions due to willful and persistent misconduct; and, he was not insane at the time he committed the offenses that led to his Court Martial and separation from service. 2. A hammertoe deformity and corns of the left foot were not manifest during the Veteran's period of honorable service from June 1956 to May 1959 and are not attributable to an injury or disease that had its origin during that period of service. 3. Hard corns of the right foot were not manifest during the Veteran's period of honorable service from June 1956 to May 1959 and are not attributable to an injury or disease that had its origin during that period of service. 4. Reactive airway disease with allergic rhinitis and asthma (claimed as hay fever), including as a result of tobacco dependence, was not manifest during the Veteran's period of honorable service from June 1956 to May 1959 and is not attributable to an injury or disease that had its origin during that period of service. 5. Dysthymia and depression were not manifest during the Veteran's period of honorable service from June 1956 to May 1959 and are not attributable to an injury or disease that had its origin during that period of service. 6. Chronic laryngopharyngitis due to GERD was not manifest during the Veteran's period of honorable service from June 1956 to May 1959 and is not attributable to an injury or disease that had its origin during that period of service. 7. Bilateral hearing loss was not manifest during the Veteran's period of honorable service from June 1956 to May 1959, or within one year following his separation from that period of service, and is not attributable to an injury or disease that had its origin during that period of service. 8. Tinnitus was not manifest during the Veteran's period of honorable service from June 1956 to May 1959 and is not attributable to an injury or disease that had its origin during that period of service. CONCLUSIONS OF LAW 1. The appellant was discharged from his second period of active duty from March 1961 to March 1962 under dishonorable conditions and the character of that discharge constitutes a bar to VA benefits based on that period of service. 38 U.S.C.A. §§ 101(2) , 5107 (West 2002); 38 C.F.R. §§ 3.12(d)(4), 3.354 (2013). 2. Postoperative residuals of correction for a hammertoe deformity and corns of the left foot were not incurred in the Veteran's period of honorable military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 3. Hard corns of the right foot were not incurred in the Veteran's period of honorable military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 4. Reactive airway disease with allergic rhinitis and asthma (claimed as hay fever), to include as a result of tobacco dependence, was not incurred in the Veteran's period of honorable military service. 38 U.S.C.A. §§ 1103, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 5. Dysthymia (claimed as anxiety, depression, and passive-aggressive reaction) was not incurred in the Veteran's period of honorable military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 6. Chronic laryngopharyngitis due to GERD was not incurred in the Veteran's period of honorable military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 7. Bilateral hearing loss was not incurred, nor is it presumed to have been incurred during the Veteran's period of honorable military service. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 8. Tinnitus was not incurred during the Veteran's period of honorable military service. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist. VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised, and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The matters on appeal stem from the Veteran's application for VA compensation benefits, which were filed prior to VA's implementation of the VCAA. During the course of the appeal, VCAA notice letters in January 2008 and October 2010 addressing the issues on appeal were dispatched to the Veteran, which collectively satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent that a timing of notice error may exist, as fully compliant VCAA notice did not precede the initial RO adjudications of the Veteran's claims decided herein, the later notice was followed by a subsequent readjudication, most recently in a supplemental statement of the case issued in December 2010, thereby curing the defective notice error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the claims adjudicated herein. As pertinent to the service connection claims on appeal, the Board notes that in a July 1995 letter, the National Personnel Records Center (NPRC) informed VA that the Veteran's service records may have been destroyed in the July 1973 fire at the NPRC records storage facility in St. Louis, Missouri. However, the claims file includes service personnel and medical records pertaining to his first period of honorable military service which, as will be further discussed below, is the only period to which he may be eligible to receive VA compensation benefits, as well as his second period of service under conditions other than honorable. The Board finds that these aforementioned records are sufficiently complete to permit it to adjudicate the claims. The Board also finds that the Veteran's relevant service and post-service medical records from VA and private sources have been obtained and associated with the evidence. In this regard, the Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic information database for any additional pertinent medical records. During the pendency of the claim, the Veteran underwent VA medical examinations in August 1995, which addressed the issues regarding service connection for hearing loss, tinnitus, foot disabilities, and a psychiatric disorder. The VA examinations provided valid data for the examining clinicians to present their diagnoses and discussion of the case; the Board thus concludes that these VA clinical examinations are adequate for adjudication purposes with respect to the matters addressed by each. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although the Veteran was not provided with a VA examination addressing his claim for service connection for a chronic respiratory disorder or laryngopharyngitis due to GERD, this deficit does not render the existing record unusable for purposes of adjudicating these claims on the merits. The Board is mindful of the test prescribed by the Court in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), regarding whether a medical examination is necessary to adjudicate a claim, and finds that the absence of an examination addressing this specific matter on appeal is not prejudicial to the Veteran's claim as he has not met the criteria under McLendon to warrant such an examination and, furthermore, the service and post-service VA and private medical records presently associated with the claims file provide sufficient evidence to decide the issue and so a VA examination is therefore not necessary to adjudicate the claim. Specifically, the Veteran has not met all four elements set forth in McLendon, which emphasize that a VA examination must be provided when there is: (1) competent evidence of current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) insufficient competent medical evidence to decide the claim. As will be further discussed below, the Board has determined that the competent evidence does not establish an in-service event, injury, or disease relating his current respiratory disease and laryngopharyngitis to his period of honorable active service. The second and third elements of the McLendon test have not been met. Therefore, the absence of a medical examination addressing these claims does not constitute a breach of VA's duty to assist. Furthermore, the Board concludes as a factual matter that the existing clinical evidence of record is sufficient to decide these claims, such that remanding the case for an examination to address this matter would be an unnecessary expenditure of VA resources. The appellant was provided with the opportunity to present oral testimony in support of his appeal before the undersigned Veterans Law Judge in a May 2014 videoconference hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) explaining fully the issues and (2) discussing the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the May 2014 hearing before the Board, the presiding Veterans Law Judge's questions and the oral testimony of the Veteran focused on the elements necessary to substantiate his service connection and character of service claims. See transcript of May 28, 2014 Board hearing. Thus, the Board finds that the Veterans Law Judge presiding over the May 2014 hearing has substantially fulfilled his obligations as required under 38 C.F.R. § 3.103(c)(2). Bryant, supra. The Veteran's evidentiary submissions and written contentions since the last Supplemental Statement of the Case of December 2010 are essentially duplicative of evidence and arguments previously submitted and, as such, there is no prejudice to the Veteran for the Board to adjudicate his appeal. Having been provided with adequate opportunity to submit or otherwise identify relevant evidence in support of his claims, the Board finds that the record does not need to be held open any longer, and that no further delay in the adjudication of this appeal is warranted. As previously stated, the Veteran has been provided with a hearing before the Board in May 2014, in compliance with the order of the Court and the remand of the Board in August 2012. A remand for additional corrective action is therefore not warranted. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to each claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Whether the character of the Veteran's discharge from his period of active service from March 1961 to March 1962 constitutes a bar to VA benefits based on that period of service. The regulations provide that 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) (West 2002); 38 C.F.R. § 3.12(a) (2013). A discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4) (2013). The Court has held that unauthorized absence is the type of offense that would interfere with and preclude the performance of an appellant's military duties and this cannot constitute a minor offense. Cropper v. Brown, 6 Vet. App. 450, 453 (1994). The record shows that the Veteran received an honorable discharge from his period of service from June 1956 to May 1959. However, he re-entered service in March 1961 and was separated from service in March 1962 under other than honorable conditions. The record indicates that he received Article 15 discipline for misconduct (identified by the appellant as fighting when he was assaulted by fellow serviceman) in July 1961. In November 1961, he received a Summary Court Martial following his being absent without leave (AWOL) for 3 days; he was apprehended by civilian authorities. He was ordered confined to his barracks and duty station for 30 days. Several days later, the appellant again went AWOL, returning of his own volition after approximately 4 days. A psychiatric evaluation was conducted in conjunction with a Special Court Martial in November 1961. The psychiatrist noted that much of the appellant's difficulty had been a direct result of his excessive alcohol use, which the appellant admitted to doing. The examiner indicated that the appellant displayed underlying hostility toward authority and that he was hostile and bitter toward the Army and only wanted to be released from service. The psychiatrist concluded that, because of his hostility, his then-current marital difficulties, and his excessive alcohol use, the appellant would be a poor risk for retention on active duty. On examination, the appellant exhibited very poor judgment and a lack of motivation to do anything about his excessive alcohol use. It was noted that his motivation for further duty was very poor. There was no evidence of psychosis, psychoneurosis, or mental deficiency. The examiner diagnosed the Veteran with an antisocial personality disorder, manifested by excessive drinking of alcohol, frequent infractions of the Uniform Code of Military Justice (UCMJ), and shirking of responsibility. He commented further that the appellant was mentally responsible, was able to distinguish right from wrong and to adhere to the right, and possessed the capacity to understand and participate in any military board proceedings. It was noted that the appellant's condition was not amenable to treatment, disciplinary action, training, transfer to another organization, or reclassification. Separation from service because of unfitness was recommended. Pursuant to the November 1961 special court martial, the appellant was sentenced to five months' confinement at hard labor. The Veteran also stated that he had been subjected to the disciplinary action of having to forfeit the majority portion of his military pay. In February 1962, the Veteran's sergeant wrote that when he had spoken with the Veteran prior to his special court martial, he indicated that he would go AWOL again if he was not confined. He verbally expressed dislike of the Army and his desire to leave service. The sergeant recommended that the Veteran be separated from active duty. The record includes a March 1962 report recommending the Veteran's discharge from service for "unfitness under the provisions of AR-635-208 and an undesirable discharge." The report outlines the Veteran's history pertaining to the physical altercation and court martial proceedings that followed the two AWOLs. The author, the commanding lieutenant, noted that he had counseled the Veteran in November 1961 after his first court martial. However, after his second court martial in December 1961, he indicated that the Veteran had stated to him that he wanted to get out of the military. Even after being told that an undesirable discharge would be detrimental to him later in life, the Veteran said that it did not worry him. The lieutenant said that he paid the Veteran monthly visits during his five months of confinement and ultimately determined that indicated he had demonstrated traits of untrustworthiness, irresponsibility, and disrespect. One day later the Veteran signed a statement indicating that he was advised by his commanding officer that he was being recommended for discharge under provisions of AR-635-208 for unfitness, and that he was advised and counseled of the basis of that action. The appellant was discharged from service in March 1962 under "other than honorable" conditions. The appellant argues, essentially, that he was the victim of racial prejudice and experienced significant financial and marital difficulties during his second period of active duty and that his excessive alcohol use was in response to these life stressors and should considered as mitigating factors in the circumstances that led to his going AWOL. In his written correspondence submitted during the course of his appeal and in his May 2014 hearing testimony, the Veteran further argues that the Army denied him his due process rights, mishandled his case during his service from March 1961 - March 1962, and incorrectly applied the UCMJ in characterizing his discharge as a disciplinary discharge due to misconduct instead of as a simple administrative discharge that would have no adverse impact on his character of service. He avers that VA had based its adverse May 1996 administrative determination regarding his character of service from March 1961 - March 1962 on lies and fabricated false evidence. With regard to these assertions, the Veteran is advised that VA has no jurisdiction over the Army. The Board is not the appropriate forum to raise an assertion that the Army misapplied the UCMJ to his case and violated his due process rights. Moreover, and contrary to his more recent contention, the March 1962 documents show that the Veteran was counseled as to the nature, scope, and ramifications of his discharge due to unfitness. His commanding officer very clearly advised him that he would be receiving an undesirable discharge, which could have an negative affect on his future. The Veteran specifically acknowledged his receipt of that counseling in a signed statement. Further, as for his assertion that VA based its adverse administrative decision regarding his character of service on false evidence, the Veteran has submitted no evidence to substantiate this assertion other than his mere allegations. He has simply provided no evidence that supports this argument. The Board notes that the Veteran alternately contends that the medical evidence is consistent with a finding that he was insane at the time of his offenses. The law provides that if the person is insane at the time of the commission of the offense leading to the court martial or discharge, VA benefits shall not be precluded. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. § 3.12(b) (2013). The appellant referred to language in 38 C.F.R. § 3.354(a) , which defines insanity. That section states, in pertinent part: An insane person is one 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 who interferes with the peace of society; or 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. The appellant asserts that the term "becomes antisocial," as used in 38 C.F.R. § 3.354, equates with "antisocial personality disorder," as diagnosed by the service department psychiatrist. The Board notes, however, that VA's General Counsel addressed this issue in VAOPGCPREC 20-97. That opinion, by which the Board is bound, held that behavior which is attributable to a personality disorder does not satisfy the definition of insanity in § 3.354(a). The opinion further stated that the term "becomes antisocial" refers to the development of behavior which is hostile or harmful to others in a manner which deviates sharply from the social norm and which is not attributable to a personality disorder. The Board concludes, therefore, that the mere fact that the appellant was diagnosed in service as having an antisocial personality disorder is insufficient as a matter of law for a finding that the appellant was insane at the time he committed the offenses that led to his court martial and separation from service. Significantly, the service department psychiatrist in November 1961 specifically attributed the appellant's behavior to his personality disorder. In addition, the examiner found that he was mentally responsible, able to distinguish right behavior from wrong behavior and to adhere to right behavior, and that he had the mental capacity to understand and participate in any military board proceedings. There is no other evidence of record pertinent to active duty in March 1961 - March 1962 that indicates that the appellant was insane at any time during the period of service at issue. Furthermore, none of the post-service clinical records associated with the evidence objectively demonstrate that the Veteran was insane within the meaning of VA regulations at the time of the commission of the offenses leading to his court martial and discharge. Accordingly, the Board concludes that the appellant was not insane at the time he committed the offenses that led to his court martial and separation from service. In order for the character of the appellant's discharge to be a bar to VA benefits, the evidence must, in this case, show that the discharge was issued because of willful and persistent misconduct. The appellant argues, essentially, that the circumstances that led to his discharge were neither willful nor persistent. He asserts that his excessive alcohol use and marital problems mitigate against a finding of "willfulness" and that his two episodes of being AWOL do not constitute "persistent" misconduct. The regulations do provide that the reasons for an individual serviceperson going AWOL must be evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity. Consideration should be given to how the situation appeared to the person himself and not how the adjudicator might have reacted. 38 C.F.R. § 3.12(d)(4) (2013); see also Strinaham v. Principi, 3 Vet. App. 560 (1992). In this case, the evidence shows that the episode that led to Veteran's Article 15 discipline resulted, at least in part, from his excessive alcohol use. In addition, the evidence shows that his going AWOL was also partly due to his drinking and the effects of his marital problems. However, by the appellant's own admission at the time he was being investigated and examined in service, the primary reason for his going AWOL was his personal dissatisfaction with military life and his desire to leave the Army. His going AWOL appears to have been voluntary and carefully considered. Moreover, just prior to his second court martial, he informed his sergeant that he would go AWOL again if he was not confined. The Board finds that these facts demonstrate the appellant's willfulness in going AWOL. In addition, the Board finds that these three episodes of errant behavior, occurring over the course of several months, constitute persistent misconduct. The appellant's two episodes of AWOL are not minor offenses, which is a finding supported by the Court's holding in Cropper v. Brown, 6 Vet. App. 450, 453 (1994). These aforementioned acts, the Veteran's admission before a witness on the record that he would go AWOL again if not confined, and his subsequent confinement to 5 months' hard labor clearly show that these are the type of offense that would interfere with and preclude the performance of his military duties. Nevertheless, the appellant argues that his excessive drinking and marital difficulties should preclude a finding of willful and persistent misconduct. Despite his assertions regarding his marital problems, the service records do not indicate that they were a significant factor in the circumstances that led to his discharge. In addition, the records show that, although his alcohol use may also have played a role in his going AWOL, his decision to do so was primarily based on his dissatisfaction with his life in military service and his intense desire to leave the Army. This finding is supported by the appellant's continued expression of those feelings while he was sober and while he was being detained prior to his special court martial. With regard to his assertion that he was a victim of racial prejudice in service, while this may in fact be true, the military record neither mentions or indicates that this was the primary motivation and reason behind his decisions to go AWOL. Therefore, the Board finds that the events that led to his discharge were major offenses and that they constituted willful and persistent misconduct. The appellant's discharge from his period of service from March 1961 to March 1962 was under dishonorable conditions and constitutes a bar to VA benefits based on that period of service. Service connection, generally. Because of the dishonorable character of the Veteran's discharge from the period of service from March 1961 to March 1962, service connection cannot be granted for any disability based on that period of service. The Board will now discuss the Veteran's claims for VA compensation benefits based on his period of honorable service from June 1956 to May 1959. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013). Under 38 C.F.R. § 3.303(b) (2013), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a) (2013); sensorineural hearing loss is a qualifying chronic disease - organic diseases of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case with regard to the aforementioned issues. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2013). Entitlement to service connection for a chronic left foot disorder (to include post-operative hammertoe residuals and hard corns), and a chronic right foot disorder (to include hard corns). The service treatment records for the Veteran's period of honorable service are completely negative for any complaints, clinical findings, or diagnosis of any foot disorder. Thereafter, a November 1961 clinic record notes "corns on feet." The only other reference to problems with his left foot in the medical records of his second period of service is contained in the report of medical history the appellant completed in February 1962. That form notes the examiner's notation of pes valgoplanus, sometimes symptomatic. No other foot complaints, clinical findings, or diagnosis of any foot disorder was noted in the medical records of the second period of service. A September 1982 private outpatient report notes mycotic great toenails, calluses, and bilateral hammertoes of both 5th toes. A March 1983 report contains a diagnosis of corns and calluses of both feet, for which he later underwent surgery. In August 1995, a VA compensation examination was conducted to evaluate the appellant's feet. The appellant reported that he had problems with corns on the lesser toes of both feet during service and a hammertoe of the left fourth toe. He stated that, during service, he had "both of them trimmed and they always seemed to return." He also reported that he wore a size 12 shoe when he went into service, but he was forced to wear a size 101/2 shoe during service; he thought that was when his foot problems started. The examiner noted that the appellant had surgery on both feet during the 1970s. The appellant indicated that the hammertoe improved following the surgery, but that the corns had returned. Examination revealed the presence of hard corns on both small toes and non-inflamed bunion deformities. The examiner also described a surgical scar on the dorsum of the left fourth toe, but with a "nice correction of his hammertoe deformity," noting that "he has no problem with that." The remaining post-service clinical records do not otherwise objectively demonstrate a nexus between the Veteran's current left foot diagnoses with his period of honorable service. Clinical findings regarding the presence of a bilateral foot disorder during the Veteran's second period of active service cannot be used to establish service connection based on that period of service because the character of this period of service is a bar to payment of VA compensation benefits. The medical records developed during his first period of service are completely negative for any complaints of abnormal clinical findings concerning a disability affecting either foot. Although the appellant was subsequently diagnosed with several foot disorders, including corns, bilateral hammertoes, pes valgoplanus, bunions, calluses, and mycotic great toenails, no clinician has objectively attributed the etiology of any of these aforementioned conditions to the Veteran's period of honorable service. Because all of the Veteran's various bilateral foot conditions were first shown several years after his separation from his period of honorable service and none of those conditions has been shown to be related to that period of service, the Board finds that service connection is not established for any bilateral foot disability. Thusly, service connection for a bilateral foot disability is denied. Although the Board has considered the principle of affording the appellant the benefit of any doubt that may be present, there is no doubt as to the foot claims. The provisions of 38 U.S.C.A. § 5107(b) are thusly not applicable to these issues. Entitlement to a chronic respiratory disorder to include reactive airway disease, allergic rhinitis, and asthma, to include as due to tobacco use in service. The medical records of the Veteran's period of honorable service are completely negative for any complaints, clinical findings, or diagnosis of any chronic respiratory disorder. Although the records do reflect that he was treated for influenza in March 1958, the records do not note any chronic respiratory symptoms or recurrence of the influenza. At the time of his re-enlistment examination in February 1961, the appellant reported a history of mild hay fever. No abnormal clinical findings or diagnosis of any chronic respiratory disorder was noted in the medical records pertinent to his second period of service. The post-service medical records, beginning in 1975, reflect periodic upper respiratory infections and bronchitis. A private clinic record dated in March 1985 notes a diagnosis of flu-like symptoms, following the Veteran's report of three weeks of fever with generalized aching. An clinician in June 1985 indicated that the appellant had "some chronic obstructive lung condition," which was confirmed on pulmonary function testing two years earlier. The Veteran reported his belief that his lung condition was due to his many years of cigarette smoking and work as a copper miner. For claims received by VA prior to June 10, 1998, direct service connection of disability or death may be established if the evidence establishes that injury or disease resulted from tobacco use in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1103 (West 2002). The determination of whether nicotine dependence, per se, may be considered a disease or injury for disability compensation purposes is essentially an adjudicative matter to be resolved by adjudicative personnel based on accepted medical principles relating to that condition. Further, the determination of the issue of service connection for injury or disease due to tobacco use must take into consideration the possible effect of smoking before or after military service. VAOPGCPREC 2-93 (O.G.C. Prec. 2-93). The only medical evidence of any respiratory disorder prior to 1975 is the appellant's notation on the history portion of his re-enlistment examination in 1961 of a history of hay fever. The record does not reflect any abnormal clinical findings or diagnosis of any chronic respiratory disorder prior to 1975, many years after his separation from his first period of service. Consideration has been given to the appellant's allegation that he began smoking in service and thus acquired a nicotine habit. He points out that cigarettes were routinely issued to servicemen in their ration kits. He argues that his smoking caused or aggravated the respiratory conditions he had had since service. However, there is no evidence that any clinician has objectively determined that the Veteran now has nicotine dependence that began during service, nor has any clinician attributed any chronic respiratory disorder affecting the Veteran to that nicotine dependence, and no clinician has otherwise attributed any chronic respiratory disorder of the Veteran's to his period of honorable service. In view of the fact that no chronic respiratory disorder was clinically and demonstrably manifest during the Veteran's period of honorable service or for many years thereafter and because there is no evidence that any clinician has objectively attributed any current chronic respiratory disorder affecting the Veteran to that period of service or to nicotine dependence that began in service, the Board concludes that service connection for a respiratory disorder is not established. The appeal in this regard must therefore be denied. Because the weight of the evidence is against the appellant's claim, the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt are not applicable in this case. Entitlement to service connection for a chronic acquired psychiatric disorder to include dysthymia. The records show that the Veteran was hospitalized in 1958 for treatment of over-ingestion of aspirin and another medication. The examiner noted that the Veteran had had an argument with his wife and that although he had been drinking "a little," he decided to swallow the medication tablets to prevent his wife from doing so. The Veteran admitted at the time that it was an impulsive and imprudent thing for him to have done. He also reported having dizzy spells when he was in a stress-provoking or frustrating situation. The examiner noted that the Veteran 's insight was poor and he was diagnosed with a chronic, moderate, passive-aggressive reaction, manifested by chronic resentment of authority, with "poor home milieu" leading to a mild predisposition. The report of the Veteran 's examination at the time his separation from his period of honorable service lists a diagnosis of passive-aggressive reaction. As noted previously, in November 1961, the Veteran was the subject of a special court martial, following his going AWOL on two occasions. A psychiatric examiner in December 1961 found that the appellant manifested very poor judgment and that he had been drinking too much at the time of the offenses, which the appellant readily admitted to doing. The examiner diagnosed antisocial personality disorder. Post-service medical records, beginning in 1975, reflect various stress-related symptoms. A June 1983 report notes a diagnosis of anxiety reaction. An August 1985 report lists diagnosis of severe depression. The record contains a partial, undated (1985) psychiatric or psychological report which contains an Axis II diagnosis of histrionic personality disorder. In October 1992, a private examiner indicated that the Veteran appeared to be experiencing symptoms of a generalized anxiety disorder, for which he was prescribed psychotropic medication. Following psychological testing, a private clinical psychologist diagnosed the Veteran with hypochondriasis, somatoform disorder, and passive-aggressive personality disorder. The report of an August 1995 VA compensation examination shows that the examining psychiatrist noted the Veteran 's report of having a longstanding history of depression extending back for more than 20 years, which the Veteran reported to have begun during military service. He complained of experiencing sporadic and poor sleep, sporadic tiredness, and some daily bouts of moodiness. He denied having any suicidal ideation, other symptoms of depression, or any overt psychosis. The diagnoses listed by the examining clinician included dysthymia, rule out unspecified anxiety disorder. The examiner commented that the Veteran had a longstanding history of chronic depression that was then under partial remission with the use of psychopharmacological therapy. The remaining post-service clinical records do not otherwise objectively demonstrate a nexus between the Veteran's current Axis I psychiatric diagnoses with his period of honorable service. The only psychiatric diagnoses noted in the appellant's service treatment records are passive-aggressive reaction and antisocial personality disorder, the former being diagnosed during his period of honorable service. Both of those disorders are considered to be personality disorders and, as such, are excluded by the regulations as conditions which may be service connected and for which VA compensation may be paid. See 38 C.F.R. § 3.303(c) (2013); Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The post-service medical records reflect a number of psychiatric diagnoses, including anxiety, depression, and dysthymia, beginning many years after the Veteran 's separation from his second period of other-than-honorable service. These records do not show that any clinician has determined that any of these aforementioned psychiatric disorders began during the Veteran's period of honorable military service or that either of the personality disorders diagnosed in service was incorrectly diagnosed. The record simply does not show that dysthymia or any other chronic acquired psychiatric disorder that the Veteran currently has is due to an injury or disease incurred during his period of honorable service. Therefore, the Board concludes that service connection has not been established for a chronic psychiatric disability. Because the preponderance of the evidence is against the Veteran's claim, the provisions of 38 U.S.C.A. § 5107(b) regarding the benefit of the doubt are not applicable and the claim in this regard must be denied. Entitlement to service connection for chronic laryngopharyngitis due to GERD. The Veteran's service treatment records for his period of honorable service as well as his period of dishonorable service are completely negative for complaints, clinical findings, or diagnosis of either laryngopharyngitis or gastroesophageal reflux or of any other gastrointestinal disorder. Post-service private outpatient records dated in 1975 note that the Veteran reported a history of colitis and duodenal ulcer "for some time now." Subsequent outpatient records reflect continued gastrointestinal symptoms and treatment, including for esophageal hernia and reflux. However, no clinician involved in the Veteran's treatment has attributed, or even considered, that any of his gastrointestinal disorders had their origin in the Veteran's first period of honorable military service or are otherwise attributable to that period of service. In the absence of any medical evidence that the Veteran currently has a chronic gastrointestinal disorder that is due to an injury or disease incurred in his period of honorable service, service connection for such a disorder is not established. Because the preponderance of the evidence is against the Veteran's claim, the provisions of 38 U.S.C.A. § 5107(b) regarding the application of the benefit of the doubt are not applicable. His claim for VA compensation for chronic laryngopharyngitis due to GERD is therefore denied. Entitlement to service connection for bilateral hearing loss and tinnitus. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). However, in Hensley v. Brown, 5 Vet. App. 155 (1993) , the Court held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal audiometric testing limits at separation from service. The service medical records for the Veteran's period of honorable service from June 1956 to May 1959 are completely negative for any complaint, clinical finding, or diagnosis of hearing loss or tinnitus. The report of the separation examination for that period of service shows that the appellant's hearing was 15/15 for both whispered and spoken voice, representing normal hearing. The examination report in February 1961, prior to the appellant's entry onto his second period of service, reflects pure tone thresholds (converted from ASA to current ISO standards) of 25 decibels (dBs) at 500 hertz and 20 dBs at 1000 and 2000 hertz, which does not meet the regulatory criteria for hearing loss for VA compensation purposes. The Court held in Hensley that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss but such is distinguishable from a hearing loss disability within the meaning of 38 C.F.R. § 3.385. Thus, a review of the February 1961 examination shows that the Veteran had some degree of Hensley-defined hearing loss in both ears. A February 1962 audiogram shows pure tone thresholds (converted from ASA to current ISO standards) of at least 55 decibels at 2000 Hertz or more in both ears. The file does not contain the report of an examination conducted at the time of the appellant's discharge from his second period of service. On the medical history portion of that examination report, however, the examiner noted the appellant's report that he had high frequency hearing loss. The DD Form 214 for the appellant's first period of service indicates that his military occupational specialty was as a light weapons infantryman. At the time of a private hearing evaluation in July 1987, the appellant indicated that he believed that his hearing loss was service-related. He reported that he had worn a hearing aid in 1980, which he had found to be unsatisfactory in certain situations. He also complained of intermittent tinnitus. The examiner indicated that, on audiometric examination, there was mild to profound sensorineural hearing loss in the right ear from 1000 to 1500 Hertz, sloping back to moderately severe hearing loss at 8000 Hertz. In the left ear, there was moderate to severe sensorineural hearing loss from 1000 to 8000 Hertz. The examiner did not comment on the etiology of the appellant's hearing loss. Later examiners also diagnosed severe bilateral hearing loss. No examiner has indicated that the Veteran's hearing loss began in, or was otherwise attributable to military service. A VA compensation examination was conducted in August 1995 to evaluate the appellant's hearing. The appellant reported that during part of his service he was assigned to an armored division and was exposed to tank cannon fire. He stated that his tinnitus began at around that time and was constant and bilateral. Pure tone audiometry revealed thresholds from 20 to 85 decibels in the right ear and 20 to 80 decibels in the left ear, at frequencies from 500 to 4000 Hertz , with speech recognition scores of 56 percent in the right ear and 78 percent in the left ear. The examiner did not comment further on the etiology of the appellant's hearing loss or tinnitus. However, as the Veteran does not claim that his hearing loss or tinnitus are related to his first period of service, as discussed below, the failure to discuss etiology does not render the opinion inadequate. Insofar as the Board has herein determined that the character of the appellant's discharge from the period of service from May 1961 to May 1962 precludes service connection for any disability based on that service, the fact that bilateral hearing loss was shown on a service department audiometric evaluation in February 1962 cannot be used to establish service connection based on that period of service. Moreover, the service treatment records, including the report of his separation examination, from his first period of service do not show any hearing loss or tinnitus. Hearing loss was first shown approximately three years after the appellant's separation from his first period of service. He also does not claim that his hearing loss or tinnitus had their onset during that time. To the contrary, he specifically testified that his hearing loss was related to his second period of active service. See Transcript at page 9, 10, and 13. It is equally important to note that no examiner has indicated that the hearing loss shown in 1962, or subsequently, was in any way related to any disease or injury incurred during the appellant's first period of service. Because neither hearing loss nor tinnitus was manifest to a compensable degree within the first year after the appellant's separation from his first period of service, service connection for hearing loss and tinnitus cannot be presumed. 38 U.S.C.A. §§ 1101, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Inasmuch as the Veteran states that he experienced onset of hearing loss and tinnitus during his first period of service and continuity of pertinent symptoms thereafter to the present time, his statements are not deemed to be credible for purposes of establishing chronicity with honorable active duty as they are contradicted by the contemporaneous medical evidence, which indicates no hearing loss or tinnitus manifest during his period of honorable military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, because there is no medical evidence linking the appellant's post-service hearing loss and tinnitus to his first period of service, service connection is not established for either audiological disability. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). In this case, the Board finds that the preponderance of the evidence is against the appellant's claim and that, therefore, the provisions of § 5107(b) are not applicable. Additional considerations To the extent that the Veteran attempts to relate his claimed medical disabilities to his period of honorable active service based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board notes that he is not a trained medical clinician. The records show that his in-service specialty was not in medicine and that his post-service career does not reflect any formal medical training. Although lay persons may be competent to provide opinions as to some medical issues (Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific question in this case regarding the actual diagnosis and time of onset of his claimed disabilities falls outside the realm of common knowledge of a lay person, the Veteran lacks the competence to provide a probative medical opinion linking his current disabilities to his period of honorable service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose internal or systemic diseases or psychiatric disorders). (CONTINUED ON NEXT PAGE) ORDER The appellant's discharge from his period of active duty from March 1961 to March 1962 constitutes a bar to VA benefits based on that period of service. Service connection for postoperative residuals of correction for a hammertoe deformity and corns of the left foot is denied. Service connection for hard corns of the right foot is denied. Service connection for reactive airway disease with allergic rhinitis and asthma (claimed as hay fever), including as a result of tobacco dependence, is denied. Service connection for dysthymia (claimed as anxiety, depression, and passive-aggressive reaction) is denied. Service connection for chronic laryngopharyngitis due to GERD is denied. Service connection for bilateral hearing loss is denied Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs