Citation Nr: 18140443 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-15 943 DATE: October 4, 2018 ORDER The character of the Appellant’s service constitutes a bar to receiving Department of Veterans Affairs (VA) benefits. FINDING OF FACT At the time of the Appellant’s entrance into service, he concealed a past history of a physical defect, namely asthma, that would have prevented his enlistment into service. CONCLUSION OF LAW The character of the Appellant’s discharge from service is a bar to receiving VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.14. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from August 1986 to October 1986, at which time he received an entry level separation on the basis of erroneous enlistment. VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claims. VA provided all appropriate notice to the Appellant in February 2013. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that VA’s duties to notify and assist have been met. For benefits purposes, a “veteran” is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. §§ 3.1(d), 3.315. VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). A claimant receiving a discharge under conditions other than honorable may be considered to have been discharged under dishonorable conditions in certain circumstances. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. An entry-level separation is generally considered to have been issued under conditions other than dishonorable, and it is therefore not a bar to VA benefits. 38 C.F.R. § 3.12(k)(1). A void enlistment or induction may, however, bar the receipt of VA benefits, depending on the facts and circumstances surrounding the separation. 38 C.F.R. § 3.12(k)(2). A discharge for concealment of a physical or mental defect that would have prevented enlistment is considered to be under dishonorable conditions, and it is therefore a bar to VA benefits. 38 C.F.R. § 3.14(a). Turning to the facts in this case, in the Appellant’s May 1986 Report of Medical History, the Appellant denied ever having had symptoms such as asthma or shortness of breath. The Appellant’s May 1986 entrance examination found the Appellant to be qualified for service, and he entered into active duty service on August 25, 1986. On September 10, 1986, the Appellant complained of a one-week history of dyspnea, wheezing, and coughing with exercise. The Appellant stated that he had a past history of asthma and recurring episodes of dyspnea, coughing, and wheezing with exercise. On September 11, 1986, a clinician assessed the Appellant with asthma that existed before his entry into service and recommended the initiation of a Medical Evaluation Board. On September 19, 1986, the Appellant appeared before a Medical Board, which found that the Appellant did not meet the minimal physical standards of enlistment. The Medical Board noted that the Appellant knew that he had suffered from childhood asthma, and he did not mention this condition at the time of his enlistment. The Medical Board recommended that the Appellant be discharged from the Navy on the basis of erroneous enlistment. The Appellant declined to rebut the findings of the Medical Board. The Appellant separated from service on October 8, 1986, with his separation document stating that he received an entry level separation on the basis of erroneous enlistment. Turning to an analysis of these facts, the evidence shows that the Appellant knew that he had a past history of asthma, and in his Report of Medical History completed at the time of his entrance into service, he denied ever having experienced asthma or shortness of breath. In other words, the Board finds that the evidence supports a finding that the Appellant concealed his symptoms of asthma and shortness of breath at the time of his enlistment into service, and this condition would have prevented the Appellant’s entrance into service. The Appellant’s period of service from August 1986 to October 1986 is therefore considered to be dishonorable. (Continued on the next page)   In sum, the Board finds that the character of the Appellant’s discharge from service is a bar to payment of VA benefits. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn