Citation Nr: 1803375	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  16-27 014	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a seizure disorder.


REPRESENTATION

Appellant represented by:	Barbara Lincoln, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The appellant had a period of active, honorable service from October 1975 to September 1981.  An October 1983 Administrative decision determined that the discharge for this period of service was under conditions that preclude VA benefits.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The appellant testified at a hearing before the undersigned in November 2016.  A transcript of the hearing has been associated with the claims file.


FINDING OF FACT

The character of the appellant's entire period of service precludes VA compensation benefits.


CONCLUSION OF LAW

The criteria for service connection for seizure disorder have not been met.  38 U.S.C. §§ 101(2), 101(18), 1110, 1131; 38 C.F.R. §§ 3.1, 3.4, 3.12

REASONS AND BASES FOR FINDING AND CONCLUSION

When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of Veteran.  See 38 U.S.C. § 1110; Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see Robertson v. Shinseki, 26 Vet. App. 169, 174 (2013), aff'd sub nom. Robertson v. Gibson, 759 F.3d 1351 (Fed. Cir. 2014) ("A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran.").  The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable.  38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). 

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. § 101 (18); 38 C.F.R. § 3.12 (a). 

In the instant case, in a VA Administrative Decision dated in October 1983 it was reported that the appellant entered service in October 1975, for a four year period.  He was discharged in January 1979, with an honorable discharge for immediate reenlistment.  He immediately reenlisted in January 1979, and was discharged in September 1981, with an other than honorable conditions discharge.  The administrative decision identifies counseling for substandard performance in February 1979; periods of absence without leave (AWOL) from April to May 1979, July to August 1979, July 1980 to November 1980, November to December 1980, and January to June 1981; a public affray with his wife in November 1980; and an incident of willfully disobeying a lawful order and resisting lawful apprehension.  The administrative decision held that had the appellant been discharged in October 1979, he would have not received a discharge or release under conditions other than dishonorable.  It was further held that the discharge given to the appellant in September 1981 was under conditions that preclude VA benefits except for health care under Chapter 17 for any benefits determined to be service-connected.  It was further held that the determination applied to the period of service from October 1975 to September 1981.

In a letter dated in February 2013 the Veteran was advised that his military service for the period of October 1975 to September 1981 was not honorable for VA purposes and that he was not eligible for any VA benefits for this period of military service.  The Veteran was informed that he may be eligible for treatment at a VA hospital for any condition determined to be related to his military service and that he should apply for treatment at a VA Medical Center or Outpatient Treatment Clinic.

At the hearing before the undersigned in November 2016 it was noted that the character of the appellant's discharge was not on appeal.  

As the character of the appellant's entire period of service has been determined to preclude VA benefits and as the character of the appellant's discharged is not on appeal, service connection for seizure disorder is denied.


ORDER

Service connection for a seizure disorder is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs