Citation Nr: 18142861 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-02 220 DATE: October 17, 2018 ORDER New and material evidence has not been received to reopen the issue of whether the appellant's character of discharge is a bar to the receipt of Department of Veterans Affairs (VA) benefits, and the appeal is denied. FINDINGS OF FACT 1. In a July 1982 decision, the Regional Office (RO) found that the appellant’s military service from December 29, 1980, to May 7, 1982, was terminated by a discharged awarded under dishonorable conditions. In August 1982, he was notified that his discharge from service constituted a bar to the payment of VA benefits. The appellant did not appeal the decision or submit new and material evidence within one year thereafter. 2. In a December 2011 administrative decision, the RO found that the appellant had not submitted new and material evidence to reopen the previous determination that his character of discharge was a bar to VA benefits. He did not appeal the decision or submit new and material evidence within one year thereafter. 3. The evidence received since the December 2011 decision is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The December 2011 decision, which determined that the appellant had not submitted new and material evidence to reopen the issue of whether the appellant’s character of discharge was a bar to his receipt of certain VA benefits, is final. 38 U.S.C. §7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The evidence received since the December 2011 decision is not new and material at the character of the appellant’s discharge, and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active service from December 1980 to May 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a hearing before the undersigned Veterans Law Judge in March 2017. A transcript is of record. 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. § 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). In this case, the appellant was discharged from active service in May 1982 under other than honorable conditions due to misconduct based on drug abuse. In a July 1982 administrative decision, the RO determined that the appellant’s character of service was a bar to VA benefits. The appellant was notified of that decision and of his appellate rights, but he did not appeal that determination or submit new and material evidence within the one-year appeal period. Therefore, the July 1982 decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In November 1982, the RO granted service connection for treatment purposes for the appellant’s left knee condition. The appellant later filed a VA Form 21-526 in September 2008. However, the RO sent a letter to him later that month advising him that the claim for service-connected compensation must be denied because the character of his discharge was previously determined to be a bar to payments of VA benefits. The appellant filed a VA Form 21-526b, Supplemental Claim for Compensation, in September 2011. In a December 2011 administrative decision, the RO found that new and material evidence had not been submitted and again determined that the appellant’s period of service from December 29, 1980, to May 7, 1982, was issued under dishonorable conditions for VA purposes and is considered to be willful and persistent misconduct. The appellant was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within one year thereafter. Therefore, the December 2011 decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. At the time of the December 2011 decision, the evidence of record included the appellant’s service personnel records and service treatment records, as well as his own statements describing the circumstances in service. The evidence of record submitted since the December 2011 decision includes post-service medical records, copies of service personnel and treatment records, record from the Social Security Administration (SSA), and the appellant’s statements and March 2017 hearing testimony. Although the post-service medical records and SSA records are new in that they were not of record at the time of the prior decision, they are not relevant to the issue of whether the appellant’s character of discharge is a bar to the receipt of VA benefits. The records do not pertain to the appellant’s misconduct in service or his state of mind at the time of such misconduct. Therefore, those records do not constitute new and material evidence. With respect to the service records, the Board notes that the records are merely copies of records that were considered. Under 38 C.F.R. § 3.156(a), evidence which is merely duplicative of evidence already in the record cannot be considered new for purposes of reopening a claim. Thus, this evidence is not new and material and cannot serve as a basis to reopen the claims. The Board has also considered the statements made by the appellant since December 2011, including his March 2017 hearing testimony. However, he has largely reiterated his contentions that were previously considered at the time of the prior denials. Moreover, the appellant acknowledged during the March 2017 hearing that he knew that his actions in service were wrong. Such statements actually suggest that he knowingly acted and weighs against the claim. He also stated that he was never found to be incompetent or insane. For these reasons, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that the claim is not reopened. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke