Citation Nr: 1742282 Decision Date: 09/26/17 Archive Date: 10/04/17 DOCKET NO. 13-35 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen the issue of whether the character of the appellant's discharge for a period of service from January 17, 1978, to April 21, 1978, is a bar to Department of Veterans Affairs (VA) benefits. 2. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The appellant served on active duty from January 7, 1978, to April 21, 1978, and from July 2, 1982, to August 31, 1982. The appellant received an uncharacterized discharge on April 21, 1978, for his first period of service. The DD-214 for the first period of service indicated that the appellant was "released from military control by reason of void enlistment." The appellant reenlisted in July 1982, and he was again discharged for the reason of erroneous enlistment. The DD-214 and discharge orders from the appellant's military personnel file for the second period of service show that that period of service was honorable, and this period may be used to claim eligibility for VA benefits. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision and July 2012 administrative decision by the VA Regional Office (RO) in Milwaukee, Wisconsin. In September 2016, the appellant testified at a videoconference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. The record was help open for 90 days following the hearing in order to provide the appellant and his representative the opportunity to submit additional evidence, to include records pertaining to any discharge upgrade requests. However, no additional evidence was submitted by the appellant or his representative. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In a January 2003 administrative decision, the RO determined that the appellant's character of discharge for his first period of service from January 17, 1978, to April 21, 1978, was a bar to VA compensation benefits. The appellant appealed that decision. 2. In a January 2007 decision, the Board found that the appellant was not eligible for VA benefits based on his service from January 17, 1978, to April 21, 1978. The appellant did not file a motion to vacate, file a motion for reconsideration, file a motion to revise the decision based on clear and unmistakable error, or appeal the decision. 3. Evidence received since the January 2007 Board decision, by itself or when considered with previous evidence of record, is cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 4. The RO previously considered and denied the appellant's claim for service connection for a nervous disorder, to include depression, in an April 2007 rating decision. The appellant was informed of the decision and of his appellate rights, but he did not appeal. There was also no new and material evidence received within one year of the determination. 5. The evidence received since the April 2007 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. 6. The appellant has not been shown to have a current psychiatric disorder that manifested in service or a psychosis that manifested within one year of his active service. The evidence also does not show that he has a current psychiatric disorder that is related to his military service. CONCLUSIONS OF LAW 1. The January 2007 Board decision that found that the appellant was not eligible for VA benefits based on his service from January 17, 1978, to April 21, 1978, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2014); 38 C.F.R. §§ 20.1100, 20.1105 (2016). 2. New and material evidence has not been received to reopen the claim of whether the character of the appellant's discharge for his first period of service from January 17, 1978, to April 21, 1978, is a bar to the receipt of VA benefits. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2016). 3. The April 2007 rating decision that denied service connection for a nervous disorder, with depression, is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2016). 4. The evidence received subsequent to the April 2007 rating decision is new and material, and the claim for service connection for a psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 5. An acquired psychiatric disorder was not incurred in active service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). I. Character of Discharge The appellant seeks to reopen a previously denied claim to lift the bar on the appellant's eligibility for VA benefits based on his character of discharge for his first period of service. A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c); and, regulatory bars listed in 38 C.F.R. § 3.12(d). With regard to the validity of enlistments, VA law provides, in relevant part, that service is valid unless the enlistment is voided by the service department. 38 C.F.R. § 3.14. Where an enlistment is voided by the service department, service is valid from the date of entry upon active duty to the date of voidance by the service department, unless the enlistment was voided because prohibited by statute. Id. Benefits may not be paid, however, unless the discharge is held to have been under conditions other than dishonorable. Id. Generally, discharge for concealment of a physical or mental defect except incompetency or insanity, which would have prevented enlistment, will be held to be under dishonorable conditions. Id. Where an enlistment is voided by the service department because the person did not have legal capacity to contract for a reason other than minority (as in the case of an insane person) or because the enlistment was prohibited by statute (a deserter or person convicted of a felony), benefits may not be paid based on that service even though a disability was incurred during such service. Id. An undesirable discharge by reason of the fraudulent enlistment voids the enlistment from the beginning. Id. In a January 2003 administrative decision, the RO determined that the appellant's character of discharge for his first period of service from January 17, 1978, to April 21, 1978, was a bar to VA compensation benefits. The RO noted that an April 17, 1978, commanding general's memorandum ordered that the appellant's enlistment be voided because the appellant concealed a civil conviction and that there was evidence of recruiter involvement in the appellant's erroneous enlistment. The appellant received an uncharacteristic discharge on April 21, 1978, by reason of void enlistment. The RO noted that, under 38 C.F.R. § 3.14, service is valid unless voided by the military. The RO indicated that there were no details in the appellant's service personnel records as to whether the "civil conviction" cited was a felony case, and the Cook County Circuit Court clerk did not respond to attempts to gain additional evidence. The RO further stated the following: There is no statute directly addressing the issue of concealment of criminal charges whether sustained or dropped in court, or convictions for non-felony Offenses on a military enlistment document, or failing to have such facts documented at some time during the recruitment process. This offense is most similar to situations in which a person conceals other information in the recruiting process which may lead to enlistment being denied. 38 CFR 3.14(a) states a discharge for concealing a physical or mental defect except incompetency or insanity which would have prevented enlistment will be held to have occurred under dishonorable conditions. Concealing information about past behaviors which led to being placed under arrest, court appearances with charges either being dropped or resulting in conviction cannot be considered honorable behavior. A discharge due to a voided enlistment occurring as a result of such deception, cannot be considered to have occurred under honorable conditions. The appellant appealed the January 2003 administrative decision. Thereafter, in a January 2007 decision, the Board found that the appellant was not eligible for VA benefits based on his service from January 17, 1978, to April 21, 1978. The Board referenced the April 1978 commanding general's order voiding the appellant's enlistment contract for concealing a civil conviction and evidence of unverified recruiter involvement. The Board also noted that the appellant's DD-214 reflected that he was "released from military control by reason of void enlistment"; that it showed no active duty service credited for this period; and that the character of service was listed as "not applicable." Therefore, the Board found that the appellant was discharged in April 1978 by reason of fraudulent enlistment, and his enlistment was voided from the beginning of that period of service. The Board noted that the appellant contended, in essence, that he was not convicted of a crime prior to his enlistment in January 1978, and therefore, the military's action was "false." The Board noted, however, that the service department makes determinations regarding service and fraudulent enlistments. Darcoron v. Brown, 4 Vet. App. 115, 120 (1993) (only Secretary of military department, acting pursuant to 10 U.S.C. § 1552(a), may correct military records of that department when considered necessary to correct error or remove injustice); Agad v. Gober, 15 Vet. App. 436 (1997). The Board found that the record failed to show that the service department had amended its initial determination regarding the appellant's 1978 enlistment, and the Board was bound by that determination. Therefore, his service from January 1978 to April 1978 was invalid under 38 C.F.R. § 3.14. The Veteran did not file a motion to vacate, a motion for reconsideration, or a motion to revise the decision based on clear and unmistakable error. Nor did he appeal the Board's decision. As such, the January 2007 Board decision became final. 38 C.F.R. § 20.1100, 20.1105. The evidence received since the January 2007 Board decision includes statements and hearing testimony from the appellant. That evidence was not previously considered by the AOJ. However, the Board finds that such evidence is cumulative or redundant, as the statements and testimony reiterate the appellant's previous contentions. Thus, these statements and testimony are cumulative or redundant of evidence previously of record, do not relate to an unestablished fact necessary to substantiate the claim, and do not raise a reasonable possibility of substantiating the claim. As noted above, the service department makes determinations regarding service and fraudulent enlistments. The Board held the record open for 90 days to allow for the submission of additional evidence, including any discharge upgrade or request; however, no such evidence has been submitted. There is other no new and material evidence showing that his discharge should be considered honorable for VA purposes. Accordingly, the Board finds that new and material evidence has not been presented to reopen the received to reopen the issue of whether the character of the appellant's discharge for a period of service from January 17, 1978, to April 21, 1978, is a bar to VA benefits. II. Psychiatric Disorder 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 2014); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As psychosis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The appellant's claim for service connection for an acquired psychiatric disorder was previously considered and denied by the RO in an April 2007 rating decision. Specifically, the RO denied service connection for a nervous disorder with depression. The evidence of record at the time of the April 2007 rating decision included the appellant's service treatment records for his second period of service from May 1982 to August 1982 and lay statements. In that decision, the RO noted that the appellant's service treatment records did not document any complaints, treatment, or diagnosis related to a nervous disorder, to include depression. In addition, the RO noted that there was no evidence of a current disorder. The appellant was notified of the April 2007 rating decision and of his appellate rights; however, he did not submit a notice of disagreement or submit new and material evidence within a year following this rating decision. Thus, the decision became final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. In February 2011, the appellant requested that his claim for service connection for an acquired psychiatric disorder be reopened. The evidence associated with the claims file subsequent to the April 2007 rating decision includes VA treatment records, a May 2011 VA examination report, statements from the appellant, and hearing testimony. Among the medical evidence received, VA treatment notes included diagnoses of an anxiety disorder and an adjustment disorder with depression. As such, the evidence relates to unestablished facts necessary to substantiate the claim (evidence of a current disability). Moreover, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board finds that new and material evidence has been presented to reopen the appellant's previously denied claim for service connection for an acquired psychiatric disorder. The Board will now turn to the merits of the underlying claim. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the appellant is not entitled to service connection for an acquired psychiatric disorder. Throughout the appeal, the appellant has contended that his anxiety and depression were caused by his first period of service. Specifically, he has related his psychiatric disorder to the military proceedings that occurred when he was discharged. However, the Board notes that the appellant is not eligible for VA benefits based on his first period of service from January 1978 to April 1978. Therefore, the appellant's claim for eligibility for VA benefits must be limited to his second period of service from July 1982 to August 1982. The Board notes that the presumption of soundness applies because no psychiatric abnormalities were noted on the enlistment examination dated in May 1982. In addition, in a May 1982 supplemental medical screening form, the appellant indicated that he was never treated by a doctor for nervous problems and that he had never been hospitalized for nervous problems. He also denied having a history of nervous trouble of any sort in a May 1982 report of medical history. There is also insufficient evidence to rebut that presumption. Moreover, the evidence does not show that the appellant has a psychiatric disorder that manifested in service or a psychosis that manifested within one year of his separation. The Board notes that the appellant was treated for complaints of chest pain when he became excited or anxious during August 1982. He was diagnosed with an anxiety reaction and instructed to relax. A May 2011 VA examiner stated that the appellant's anxiety reaction diagnosis in 1982 appeared to have been the result of a report of chest pains when excited or anxious with no other corresponding symptoms of panic attacks. The examiner explained that the diagnosis of anxiety reaction is a transient condition that was not expected to persist and certainly was not expected to be as disabling as the appellant has claimed it has been. Rather, the examiner opined that the appellant's history of chronic dysfunction, including any current psychiatric complaints, were due to substance abuse and possibly premorbid mental health and/or personality characteristics. In addition, the evidence does not show that the appellant has a current psychiatric disorder related to his military service, to include any reported symptomatology therein. The post-service records do document diagnoses of an anxiety disorder, alcohol abuse, polysubstance dependence, and substance-induced depression, but the available evidence does not relate those disorders to his military service. In fact, VA treatment records indicated that the appellant first sought treatment in March 1995 for substance abuse. At that time, he reported no psychiatric history or symptoms, except for a brief treatment for depression in the 1970s. In June 1996, the appellant was diagnosed with substance-induced depression after reporting a five to six month history of depressive symptoms. He also reported a history of a suicide attempt in 1976 which he attributed to problems with family, school, and drugs. In August 1996, the appellant was again treated for substance abuse treatment. He completed psychological testing at that time, which revealed no significant symptoms of anxiety or depression and antisocial personality traits. The appellant was discharged from the VA substance abuse rehabilitation program, and the discharge summary indicated that he was passive aggressive at times, avoided taking responsibility in his role in conflicts, and was manipulative per psychological testing. In November 2006, the appellant presented to a VA emergency room reporting that he was suicidal. At that time, he referenced a history of posttraumatic stress disorder (PTSD), but he was unable to identify any trauma, except that he was traumatized by the fact that he had been dishonorably discharged from the military. It was noted that the appellant was vague and "pursuing a different agenda-in this case[,] arguing with administration officials about his VA benefits." The May 2011 VA examiner noted that the appellant provided an inconsistent and, at times, contradictory report of symptoms. She related that there had been an inconsistent report of mood and anxiety related symptoms that included no significant anxiety or depression upon extensive psychological testing in 1996. She also noted that the appellant reported that he had no history of previous mental illness with the exception of a suicide attempt due to depression in 1976. She concluded that there was not a credible pattern of chronic anxiety or depression. She indicated that an accurate diagnosis was difficult due to the appellant's vague and inconsistent self-report. Therefore, she opined that it was not at least as likely as not that any current mental health symptoms or conditions were related to the appellant's service-diagnosed anxiety reaction. In summary, the Board finds that the available evidence shows that an acquired psychiatric disorder did not manifest in service or within one year thereafter and is not otherwise related to the appellant's military service. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has not been received, and the issue of whether the character of the appellant's discharge for a period of service from January 17, 1978, to April 21, 1978, is a bar to VA benefits, is not reopened. New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Service connection for an acquired psychiatric disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs