Citation Nr: 18144325 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-31 777 DATE: October 24, 2018 ORDER Entitlement to service connection for bilateral plantar fasciitis (claimed as a foot disorder) is denied. FINDINGS OF FACT 1. There is no evidence of a foot injury or the onset of plantar fasciitis during the Appellant’s period of active duty for training from March 1996 to June 1996. 2. The Appellant sought treatment for foot pain and was diagnosed with bilateral plantar fascitis during a period of service from August 1997 to September 2000 that has been characterized as dishonorable. CONCLUSIONS OF LAW 1. Bilateral plantar fasciitis was not incurred during active duty training. 38 U.S.C. §§ 101 (24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.12, 3.303. 2. The appellant’s character of discharge for the period of service from August 1997 to September 2000 is a bar to the payment of VA compensation benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant had a period of active duty for training with the Army National Guard from March 1996 to June 1996 and received an uncharacterized discharge. His discharge from a period of service from August 1997 to September 2000 in the Marine Corp was dishonorable. A January 2006 Administrative Decision determined that the Appellant’s uncharacterized discharge from National Guard active duty from training from March 1996 to June 1996 was “under conditions other than dishonorable” conditions. See 38 C.F.R. § 3.12 (k)(1). He is not barred from receiving VA benefits for a disability as a result of an injury or disease incurred in or aggravated by his period of service from March 1996 to June 1996. However, as will be discussed below, the Appellant’s discharge from his period of active service from August 1997 to September 2000 with the Marine Corp was dishonorable. The record shows that the Appellant has made attempts to amend/correct his Bad Conduct (dishonorable) discharge but that no amendment/corrections have been made. This matter comes to the Board of Veterans’ Appeals from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Appellant indicated that he is in receipt of Social Security Administration (SSA) disability benefits for his bilateral foot disorder. See June 2016 VA Form 9. Although records with that agency have not been obtained, nothing in the record suggests that those records would provide pertinent information in support of his claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). In this regard, the Board notes that the Appellant’s bilateral foot disorder is being denied due to a lack of in-service injury during an honorable period of service and his bar from receiving benefits for his period of dishonorable service. As such, the Board finds that there is no prejudice in proceeding with the appeal. 1. Service Connection for a bilateral foot disorder The Appellant asserts that a bilateral foot disorder is the result of military service. See August 2006 Statement in Support of Claim. He states that he injured his feet during his second period of service in the United States Marine Corps in 1998. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, service connection requires credible evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active military service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). Active military service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Service personnel records document that the Appellant had a period of active duty for training with the Army National Guard from March 1996 to June 1996. Service treatment records from that period are silent for any complaints, treatment, or diagnosis of a bilateral foot disorder or injury. The Appellant’s January 1996 Report of Medical Examination and Report of Medical History for Enlistment in the Army National Guard reflect normal feet evaluations. The August 1997 Report of Medical Examination for Enlistment in the Marine Corp reflects normal feet. The Appellant is currently diagnosed as having bilateral heel pain and plantar fasciitis. However, on review, there is no evidence that the Appellant was seen for any disease or injuries relating to the claimed foot disorder during his period of active duty for training. He does not argue the contrary. His argument has consistently been that he hurt his feet while serving with the Marine Corps, which was his second period of service. In summary, the evidence preponderates against finding that any current disability of the feet was incurred during or is otherwise related to the Appellant’s period of active duty for training with the Army National Guard from March 1996 to June 1996. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. As for his period of active with the Marine Corps from August 1997 to September 2000, service treatment records show the Appellant complained of pain in both feet and heel pain. He was diagnosed as having bilateral plantar fasciitis, bone marrow edema involving the calcaneus likely corresponding to a stress fracture, and severe distal achilles tendinosis. A July 1997 service treatment record reflects that the Veteran was diagnosed with a bilateral foot infection and was recommended for new boots or to wax/ waterproof his boot. However, the above service treatment records documenting complaints and treatment for foot problems occurred during a period of dishonorable service. A dishonorable discharge, a statutory bar, or a regulatory bar, deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception such as insanity applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303 (a) and 38 C.F.R. § 3.12 (c), and regulatory bars listed in 38 C.F.R. § 3.12 (d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court-martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days (with specified exceptions to this condition). 38 C.F.R. § 3.12 (c). An adjudicator is permitted to look at the totality of the evidence rather than merely accepting whatever rationale a claimant might offer for periods of AWOL. Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general courts-martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); (4) willful and persistent misconduct (this includes a discharge under “other than honorable conditions”, if it is determined it was issued because of willful and persistent misconduct. A discharge because of a minor offense, however, will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious). 38 C.F.R. § 3.12. A discharge or release from service under one of the above conditions specified in 38 C.F.R. § 3.12 is a statutory or regulatory bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 U.S.C. § 5303 (b) (2012); 38 C.F.R. § 3.12 (b). Thus, insanity is a defense to all statutory and regulatory bars. Except as provided in 38 C.F.R. § 3.13 (c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13 (b) (2017). The Appellant’s personnel file shows that for the period of service from August 1997 to September 2000, he went on unauthorized absence on July 7, 1998 and he did not return of his own volition but was apprehended by authorities on August 2, 1998. As a result, the Appellant received a bad conduct discharge for his actions which he appealed to the US Navy Marine Corps Court of Criminal Appeals. The US Navy Marine Corps Court of Criminal Appeals upheld the special courts martial decision of a bad conduct discharge. In a January 2006 administrative decision, VA determined that no VA benefits are payable for the period of service spanning from August 1997 to September 2000. Additionally, service treatment and personnel records do not show nor does the Appellant contend that he was insane at the time of committing the offense causing his discharge from service. Therefore, service connection is statutorily barred based on the foot problems reported during the period of dishonorable service from August 1997 to September 2000. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel