Citation Nr: 1603837 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 10-42 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether the appellant's notice of disagreement with an October 2008 decision determining that his May 1973 discharge is a bar to Department of Veterans Affairs benefits, including health care under 38 U.S.C. Chapter 17, was timely filed. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from January 1970 to May 1973 and was discharged under conditions other than honorable. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In that determination, the RO found that the appellant's June 2010 notice of disagreement with an October 2008 decision determining that his May 1973 discharge was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17, was not timely received. In June 2015, the Board remanded the matter for the purposes of affording the appellant the opportunity to appear at a Board hearing. In November 2015, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. In an October 2008 decision, the RO determined that the character of the appellant's May 1973 discharge is a bar to his receipt of VA benefits, including health care under 38 U.S.C. Chapter 17. The appellant and his representative were duly notified of the RO's determination and his appellate rights. 2. Neither the appellant nor his representative submitted any written statement during the remainder of the appellate period which could be interpreted as a notice of disagreement with the October 2008 adverse determination, nor was an extension of time requested. 3. In June 2010, after the expiration of the appeal period, the appellant's notice of disagreement was received by VA. CONCLUSION OF LAW The appellant did not submit a timely notice of disagreement with an October 2008 determination that his May 1973 discharge is a bar to VA benefits, including health care under 38 U.S.C. Chapter 17. 38 U.S.C.A. §§ 5107, 7105, 7108 (West 2014); 38 C.F.R. §§ 20.201, 20.302 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The record on appeal indicates that in April 2008, prior to adjudicating the underlying claim of basic eligibility for VA benefits, the RO duly issued a letter to the appellant advising him of the information and evidence needed to substantiate and complete his claim. The RO also obtained the necessary information and evidence from the service department, including the appellant's service treatment records and personnel records. Given the issue now on appeal, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Once a claim has been adjudicated, as is the case here, different notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 5104 and 7105. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the notification requirements of 38 U.S.C.A. § 5104 and 7105 have been satisfied. Neither the appellant nor his representative has argued otherwise. As discussed in more detail below, with respect to the underlying claim, the appellant was duly provided notice of the unfavorable decision, as well as an explanation of the procedure for obtaining appellate review of that decision. With respect to the current matter on appeal, the issue of the timeliness of his notice of disagreement, the record likewise shows that the appellant was duly provided notice of the determination regarding timeliness, as well as an explanation of the procedure for obtaining appellate review of that decision. Following receipt of his notice of disagreement, the appellant was appropriately notified of the pertinent legal criteria in a Statement of the Case. Following receipt of his substantive appeal, the appellant was afforded the opportunity to attend a Board hearing. For these reasons, the Board finds that the notification requirements of 38 U.S.C.A. § 5104 and 7105 have been satisfied. Again, neither the appellant nor her attorney has argued otherwise. Here, the Board notes that at his November 2015 Board hearing, the appellant argued that his notice of disagreement should be considered timely because, although he did receive the October 2008 decision determining that his May 1973 discharge was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17, he nonetheless continued to receive VA health care. He asserts that when he was eventually notified by the VA health care facility in May 2010 that he was not eligible for VA care, he submitted a notice of disagreement shortly thereafter. Under these circumstances, he argues that his notice of disagreement should be considered timely. The appellant has argued by implication that VA has a duty to obtain records of his VA treatment for the purposes of establishing that he continued to receive care and that his notice of disagreement was timely. The Board has carefully considered this argument, but concludes that such VA clinical records are not material to the matter at issue. The appellant's testimony that he received VA care from October 2008 to May 2010 is sufficient to establish that fact. The fact that he received gratuitous VA care to which he was not entitled, however, is immaterial to the matter at issue here. Based on the RO's determination, the appellant's May 1973 discharge bars him from receiving VA benefits, including health care under 38 U.S.C. Chapter 17. That the VA Medical Center continued to provide such care prior to learning of the RO's determination cannot serve to reestablish such legal eligibility, nor does it negate the October 2008 notice that the appellant was not legally eligible for such benefits. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Under these circumstances, a remand to obtain these VA medical records would serve no purpose, as they are not relevant to the issue on appeal. Finally, the Board notes that the appellant was provided an opportunity to testify at a hearing before the undersigned Veterans Law Judge in connection with his appeal. During that hearing, the undersigned Veterans Law Judge identified the issue on appeal and discussed in the decision below. The hearing focused on the legal and factual elements at issue here and the appellant, through his testimony and questioning by his representative, demonstrated his actual knowledge of these elements. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Background In April 2008, the appellant submitted an original application for VA compensation benefits, seeking service connection for hearing loss and tinnitus. On his application, the appellant reported that he had served on active duty from January 1970 to March 1971 only. He reported no other service. In support of his claim, the appellant submitted a DD Form 214 reflecting service from January 1970 to March 1971, with an honorable discharge for the purposes of immediate reenlistment. In connection with the claim, the RO solicited additional information from the service department. The information provided reflected that the appellant had had an additional period of service from March 1971 to May 1973, but had been discharged under other than honorable conditions. The RO thereafter obtained the appellant's complete military personnel records which reflect periods of AWOL totalling 381 days. These records further reflect that as a result, in May 1973, the appellant was discharged under other than honorable conditions in lieu of a trial by court martial. In an April 2008 letter, the RO advised the appellant that the service department had indicated that his entire period of service from January 1970 to May 1973 was not honorable. He was provided with the applicable legal criteria and asked to provide information and evidence, including the events which led to his discharge. The appellant did not respond. In an October 2008 decision, the RO determined that the appellant's May 1973 discharge was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17. The RO explained that pursuant to 38 C.F.R. § 3.12(c), a discharge or release under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17, absent compelling circumstances to warrant the prolonged unauthorized absence. The appellant was duly notified of the RO's determination and his appellate rights in an October 2008 letter. A copy of the notification letter was also provided to his representative of record. The record contains no indication that the appellant initiated an appeal within the applicable time period and he has not contended otherwise. The record shows that in April 2010, the appellant submitted an additional application for VA compensation benefits, seeking service connection for various disabilities which he claimed were related to Agent Orange exposure. In a May 2010 letter, the RO advised the appellant that its prior October 2008 determination that his discharge constituted a bar to the receipt of VA benefits, including healthcare under Chapter 17 of Title 38 U.S.C., was final. He was advised that if he wished to reopen the claim, he could do so with the submission of new and material evidence. In a June 2010 statement, the appellant indicated that he wished to appeal the denial of eligibility for VA health care benefits. Later that month, the RO explained that because he had been duly notified of the decision regarding eligibility for VA health benefits in October 2008, his June 2010 notice of disagreement was not timely filed. The appellant appealed the RO's determination regarding the timeliness of his notice of disagreement. He argued that his "NOD is based upon a current denial not a previous denial." See June 2010 letter from appellant. In his October 2010 substantive appeal, the appellant claimed that following his return from Vietnam, he suffered a mental breakdown which required 10 months of extensive psychiatric treatment. He claimed that he then turned himself into military authorities who demoted him and discharged him with an "under other than desirable conditions." He argued that the medical and psychiatric circumstances of his case should be considered in determining his eligibility for VA benefits. At his 2015 Board hearing, the appellant acknowledged that he had been notified of the determination of the character of his discharge in October 2008, but had "let that go," because his primary focus was continuing to receive VA healthcare. Transcript at page 8. The appellant testified that it was not until May 2010, when he learned that his VA healthcare was being stopped, that he acted to file a notice of disagreement. Applicable Law By statute, the Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108 (West 2014). An appeal consists of a timely filed notice of disagreement in writing and, after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. § 20.200 (2015). In essence, the following sequence is required: a decision by the RO; a notice of disagreement expressing timely disagreement with the decision by the appellant; a statement of the case issued by VA that explains the basis of the decision; and a timely filed substantive appeal from appellant. 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203 (2015). To be considered timely, the notice of disagreement must be filed within one year of notification of the adverse decision being appealed. The notice of disagreement must be in writing and be filed with the agency of original jurisdiction, i.e. the activity which entered the determination with which disagreement is expressed. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.201, 20.302 (2015). Analysis As noted above, in an October 2008 decision, the RO determined that the appellant's May 1973 discharge was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17. The appellant and his representative were duly notified of the RO's determination and his appellate rights. The record contains no evidence that the appellant or his representative submitted any document or documents during the remainder of the appellate period which could be interpreted as a notice of disagreement. Indeed, the appellant does not contend otherwise. Based on the undisputed facts set forth above, the Board finds that the appellant did not submit a timely notice of disagreement with the October 2008 determination that his May 1973 discharge was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17. See 38 U.S.C.A. §§ 7105, 7108 (West 2014); Rowell v. Principi, 4 Vet. App. 9 (1993) (if there is a failure to comply with the law or regulations, it is incumbent on the Board to reject the application for review on appeal). In reaching this determination, the Board has carefully considered the recent contentions of the appellant that, although he did receive the October 2008 decision determining that his May 1973 discharge was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17, because he continued to receive VA health care until May 2010, the appeal period was, in effect, tolled until he stopped receiving that care. However, there is no provision in the law to find the appellant's notice of disagreement timely on this basis, to include negating the October 2008 notice or tolling the appellate period. Even assuming that VA medical staff continued to provide medical care to the appellant, possibly leading him to believe he was eligible for care despite the RO's clear notice that the character of his discharge was a bar to such benefit, it is well established that erroneous action or advice given by a government employee cannot be used to estop the government from denying benefits. See Johnson v. Brown, 9 Vet. App. 369, 377 (1996); Bone v. Brown, 9 Vet. App. 446, 448-49 (1996); Owings v. Brown, 8 Vet. App. 17, 23 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994). Additionally, the evidence does not show, nor does the appellant contend, that VA deliberately misled or induced him to fail to file a notice of disagreement with its determination regarding his eligibility for VA healthcare until the expiration of the appeal period. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir 1998) (en banc). To some extent, the appellant appears to be raising an argument couched in equity. The Board, however, is without authority to grant benefits on an equitable basis, no matter how sympathetic the claim. See 38 U.S.C.A. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) (noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). In this case, the appellant's notice of disagreement was received in June 2010, more than one year after notification of the October 2008 determination that his May 1973 discharge was a bar to VA benefits, including health care under 38 U.S.C. Chapter 17. As set forth above, the applicable legal criteria are clear. In light of the undisputed facts of this case, therefore, the appellant's appeal must be denied. The Board additionally notes that the RO has repeatedly advised the appellant that he is not precluded from submitting additional evidence for the purpose of attempting to reopen this claim. See 38 U.S.C.A. § 5108 (West 2014) ("If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."). The appellant and his representative are therefore advised that should he wish to attempt to reopen this matter, he should submit a claim on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). ORDER The appeal is denied. ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs