Citation Nr: 18144547 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-44 499 DATE: October 24, 2018 ORDER The character of the Veteran’s period of service from October 24, 1970, to August 11, 1971, is a bar to the receipt of VA benefits for that period of time. Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. In the absence of a timely substantive appeal as to the claims of entitlement to an earlier effective date for the award of service connection for unspecified depressive disorder, an increased rating for unspecified depressive disorder, an increased rating for coronary artery disease (CAD), and a total disability rating based on individual unemployability (TDIU), the claims are dismissed. REMAND Service connection for a kidney disability is remanded. Service connection for chronic obstructive pulmonary disease (COPD) is remanded. Service connection for hepatitis C is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s in service misconduct for the period from October 24, 1970, to August 11, 1971, was willful and persistent; it did not consist of minor offenses offset by otherwise honest, faithful and meritorious service, and the Veteran was not insane at the time he committed the in service misconduct. 2. The Veteran’s bilateral hearing loss disability was not related to his active duty service. 3. The Veteran’s tinnitus was not related to his active duty service. 4. The Appellant did not file a timely substantive appeal as to the issues of entitlement to an earlier effective date for the award of service connection for unspecified depressive disorder, an increased rating for unspecified depressive disorder, an increased rating for CAD, and a TDIU, and VA has not waived this jurisdictional defect. CONCLUSIONS OF LAW 1. The character of the Veteran’s discharge from service for the period from October 24, 1970, to August 11, 1971, is a bar to receiving VA compensation benefits. 38 U.S.C. § 5303 (2012); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2018). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2018). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, (2018). 4. In the absence of a timely substantive appeal as to the issues of entitlement to an earlier effective date for the award of service connection for unspecified depressive disorder, an increased rating for unspecified depressive disorder, an increased rating for CAD, and a TDIU, and the Board lacks jurisdiction to consider these issues. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 20.100, 20.200, 20.202, 20.300, 20.302 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1970. The Veteran had additional service from October 1970 to August 1971, with a character of discharge that bars the receipt of VA benefits for this period. The Veteran died in March 2016, and the Veteran’s surviving spouse has been substituted as the Appellant. The Board notes that the Agency of Original Jurisdiction (AOJ) separately developed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). With that said, mental disorders other than eating disorders are all evaluated under the same rating criteria, and VA is precluded from evaluating the same disability under various diagnoses. 38 C.F.R. §§ 4.14, 4.130, Diagnostic Codes 9201-9440 (2018); see Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). The AOJ granted the Veteran’s claim for unspecified depressive disorder in October 2014, and all of the Veteran’s psychiatric complaints are considered in that rating. The claim for service connection for PTSD is therefore moot, and the Appellant is not prejudiced by this decision. Character of Discharge 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. A discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense, however, is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. With that said, “offenses that would interfere with the appellant’s military duty, indeed preclude their performance... are not minor.” Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452 453 (1991). Being absent without leave (AWOL) has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. See, e.g., Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board’s finding that two and half months of AWOL was willful and persistent misconduct); Stringham, 8 Vet. App. at 445 (upholding the Board’s finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming the Board’s finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct and, by analogy, persistent misconduct). A discharge under dishonorable conditions bars the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). For the purpose of this regulation, an “insane” person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). Turning to the facts in this case, the Veteran enlisted into the United States Army (Army) on October 24, 1967, for a three-year period of obligation expiring October 23, 1970. The Veteran was honorably discharged effective February 12, 1969, for immediate reenlistment into a six-year period of obligation. On December 23, 1970, a record of non-judicial proceedings noted that the Veteran was AWOL from December 2, 1970, to December 21, 1970. The Veteran was reduced to the grade of E-1 and forfeited a portion of his pay for two months. In a February 24, 1971, Commander’s Statement, it was noted that the Veteran wished to return to his father’s house to “settle some very serious problems”. The Veteran was given leave to depart, but the Veteran did not sign out or return to the unit as expected. On January 19, 1971, the Veteran’s father reported that the Veteran had not, in fact, gone to his father’s house as he said he would. In a June 21, 1971 special court-martial, it was found that the Veteran had been AWOL from January 1, 1971, until June 7, 1971, at which time he was confined after surrendering to military authorities. The Veteran was confined to hard labor for five months and forfeited a portion of his pay for five months. A June 25, 1971 Chaplain’s Evaluation, after considering the Veteran’s background, record, and present motivation, recommended that the Veteran be discharged from service. On July 20, 1971, the Veteran’s commanding officer advised him that he would take actions to effect the Veteran’s administrative separation from service on the basis of unfitness, as a result of the Veteran’s conviction by special court-martial, 202 days of bad time due to AWOL and confinement, the Veteran’s lack of motivation toward self-improvement, and his negative attitude towards his responsibilities. On July 22, 1971, the Veteran waived further consideration of his case before a board of officers. The Veteran was separated from service with a discharge under other than honorable conditions effective August 11, 1971. The Veteran’s service separation document indicated that he had lost 221 days of service during this time. Following service, the Veteran stated in March 2011 that it was necessary for him to leave service in order to be at home with his mother. The Veteran indicated that he told his commanding officers in-service that if they returned him to service, he “would just leave again”. The Veteran said that the Army had “nothing more [he] wanted”. In August 2013, the Veteran’s representative argued that the character of the Veteran’s discharge from service should not bar him from receiving benefits because he only began to experience difficulties as a result of mental health issues resulting from his earlier period of service. Turning to an analysis of these facts, as an initial matter, the Board notes that reenlisting before the expiration of the entire period of obligation, as the Veteran did in February 1969, generally creates a single lengthy period of service. With that said, when a claimant completes an entire period of service required by an enlistment, and there is no evidence of misconduct or other basis for the award of a discharge under conditions other than honorable during that enlistment period, VA benefits may be granted based on the period of initial obligation. See 38 C.F.R. § 3.13. Thus, the Board finds that VA benefits are indeed payable based on the Veteran’s period of service beginning with his initial enlistment in October 24, 1967, and continuing until the expiration of his three-year period of obligation on October 23, 1970. As to the period beginning October 24, 1970, and ending with his August 1971 separation from service, the Board finds that the weight of the evidence supports a finding that the Veteran’s discharge was indeed the result of willful and persistent misconduct. During this time, the Veteran was AWOL from December 2, 1970, to December 21, 1970, and from January 1, 1971, to June 7, 1971. The Veteran otherwise was incarcerated for a lengthy period of time. Indeed, the Veteran lost 221 days of service during the 291-day period from October 24, 1970, to August 11, 1971. The Veteran received counseling on several occasions regarding this misconduct and was found not to have the motivation to improve. Indeed, the Veteran, by his own account, stated in March 2011 that had the Army allowed him to continue serving, he simply would have gone AWOL again because the service had “nothing more [he] wanted”. The Board thus finds that the Veteran was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of behavior that interfered with the Veteran’s military duty and resulted in a special court martial and his ultimate discharge from service. The Board acknowledges the arguments of the Appellant’s representative that the Veteran separated from the service as the result of untreated mental health issues. The Board finds that these arguments are inconsistent with the Veteran’s personnel records, which show that the Veteran consistently engaged in misconduct despite repeated counseling. Furthermore, the Veteran himself stated that he voluntarily sought to leave service because it had “nothing more [that he] wanted”. The record shows not an insane soldier, but a soldier who simply decided that he did not desire to complete his obligated service. In sum, the Board finds that the Veteran was not insane at the time that he committed the series of offenses that led to his discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). Thus, the Board finds that the character of the Veteran discharge from service is a bar to payment of VA benefits for the period from October 24, 1970, to August 11, 1971. 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). Service Connection In order to establish service connection, there must be evidence of (1) a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Hearing loss and tinnitus are chronic diseases, and service connection may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service incurrence will be presumed for hearing loss and tinnitus if manifested to a compensable degree within the year after active service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Turning to the facts in this case, the Veteran did not complain of symptoms such as difficulty hearing or tinnitus during service. Following the Veteran’s period of honorable service, in a June 1971 report of Medical History, the Veteran denied ever having experienced symptoms such as running ears, ear trouble, or hearing loss. The Veteran filed his claim in December 2010. The Veteran underwent a VA examination in May 2013, at which time the Veteran showed a bilateral hearing loss disability and complained of tinnitus. The examiner found that the Veteran’s bilateral hearing loss disability and tinnitus were less likely than not related to his military service. As a rationale for this opinion, the examiner noted that the Veteran served as a unit supply specialist, and the Veteran reported that he was exposed to explosions and gunfire in-service without hearing protection. The Veteran reported post-service occupational noise exposure without hearing protection for 8 years while working as a plumber. The Veteran denied experiencing recreational noise exposure. The Veteran’s hearing was within normal limits in June 1971. The examiner noted that the Veteran, in June 1971, stated that he had never experienced ear, nose, or throat trouble, running ears, or hearing loss. The examiner noted that the Veteran reported an onset of tinnitus long after his discharge from the military, and he did not complain of tinnitus during service. The examiner thus concluded that it was less likely than not that the Veteran’s bilateral hearing loss and tinnitus related to service. Turning to an analysis of this evidence, the Veteran had a bilateral hearing loss disability and tinnitus, and he contended that he was exposed to loud noises in service. With both a current disability and an in service incident, the remaining question is whether the evidence supports a finding of a connection between the Veteran’s bilateral ear hearing loss disability and his tinnitus on the one hand, and his in service experiences on the other hand. To that end, the Board places great probative weight in the opinion of the May 2013 examiner that the Veteran’s bilateral hearing loss and tinnitus were not likely related to his service because such opinion was offered by a medical professional who considered and discussed the pertinent evidence of record. To the extent that the Veteran believed that his bilateral hearing loss and tinnitus were related to his service, the Board notes that the Veteran was competent to provide testimony concerning factual matters of which he has first hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing diminished hearing acuity. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a bilateral hearing loss disability and tinnitus, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions suggesting that the Veteran’s bilateral hearing loss disability and tinnitus were related to his service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, as such evidence was provided by medical professionals and concerned the functioning of the Veteran’s nervous system, something that is not readily perceivable by the use of a person’s senses. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his bilateral hearing loss disability and tinnitus, and it finds that he has not done so. The record contains no complaints relating to the Veteran’s hearing until the Veteran filed his 2010 claim approximately 40 years after he separated from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran’s entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). The Veteran denied ever having experienced ear trouble or hearing loss in June 1971, soon after his separation from service, thereby providing contemporaneous evidence against a finding that he had a hearing loss disability or tinnitus at that time, or continuously since service. Thus, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since active duty. The medical nexus element thus cannot be met via a continuity of symptomatology. Furthermore, the Board finds that a bilateral hearing loss disability and tinnitus were not shown within one year following separation from service, or for many years after service. Therefore, presumptive service connection is not warranted. The Board concludes that the weight of the evidence is against granting service connection for a bilateral hearing loss disability and tinnitus, and the claims are denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Timeliness of Substantive Appeal A claimant has the longer of one year from the date of a rating decision or 60 days from the issuance of a statement of the case (SOC) to perfect an appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. The absence of a timely substantive appeal does not prevent the Board from taking jurisdiction; VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). With that said, the Board may indeed decline to exercise jurisdiction over an appeal if it was not timely filed. See id. at 45. Additionally, the deadline for filing a substantive appeal may be equitably tolled. Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Equitable tolling is justified in “extraordinary circumstances”. McCreary v. Nicholson, 19 Vet. App. 324 (2005). The following three requirements must be met: (1) the extraordinary circumstance must be beyond the claimant’s control, (2) the claimant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the claimant must exercise “due diligence” in preserving her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id.; see also Checo v. Shinseki, 26 Vet. App. 130 (2013). In this case, an October 2014 rating decision granted service connection for unspecified depressive disorder with an initial 50 percent rating effective March 17, 2011, and it granted service connection for CAD with a 30 percent rating effective February 24, 2011. The Veteran filed a timely notice of disagreement as to this decision in April 2015. A July 2015 rating decision denied the claim for a TDIU, and the Veteran filed a timely notice of disagreement as to this decision later that month. An SOC was issued as to these issues on January 19, 2017, and the SOC was mailed to both the Appellant and her representative on January 20, 2017. The SOC informed the Appellant and her representative that she had 60 days from the date of the letter (or, the Board notes, until March 21, 2017) to perfect an appeal. VA did not receive a substantive appeal by that date, and the October 2014 and July 2015 rating decisions thus became final. On April 28, 2017, the Appellant’s representative indicated that he had not received proper notice of the January 20, 2017, SOC, arguing that a paper copy of the SOC was “required to satisfy the intent of [the pertinent regulation] as [the regulation] was enacted in 1948 when electronic copies were not available.” The Appellant’s representative argued that failure to supply a paper copy of the SOC constituted a violation of the due process clause, and he submitted a VA Form 9 on the Appellant’s behalf. In October 2017, the RO indicated that it could not accept the April 2017 VA Form 9 because it was submitted after the March 21, 2017 deadline for such submission. Turning to an analysis of these facts, the Board notes that there is a presumption of regularity that applies to official acts, and “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992). In this case, there is no indication that the January 2017 notice letters sent both to the Appellant and her representative were returned as undeliverable or were otherwise not received by both parties. Therefore the presumption of regularity applies, and it is presumed that the Appellant and her representative received the notice and the SOC concerning her claim, sent by mail. Neither the Appellant nor her representative has argued that extraordinary circumstances prevented the filing of a timely substantive appeal. In sum, in the absence of a timely substantive appeal, the Board dismisses the claims of entitlement to an earlier effective date for the award of service connection for unspecified depressive disorder, an increased rating for unspecified depressive disorder, an increased rating for CAD, and a TDIU. REASONS FOR REMAND With regard to the claims of entitlement to service connection for COPD, hepatitis C, and a kidney disability, the Veteran suffered from each of these disabilities before his death in March 2016. The Veteran claimed that such disabilities were related to his in-service exposure to Agent Orange. Absent affirmative evidence to the contrary, a presumption of herbicide exposure extends to veterans who served in the Republic of Korea (Korea) between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied. 38 C.F.R. § 3.307(a)(6)(iv). In this case, the Veteran had service in the 3rd Battalion, 23rd Infantry, 2nd Infantry Division, in Korea during the dates specified above. The Department of Defense (DoD) has determined that this unit operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period. The Veteran was not afforded with examinations to assess whether his kidney disability, COPD, or hepatitis C were related to his presumed in-service exposure to Agent Orange, and the AOJ should obtain opinions assessing whether the Veteran’s claimed disabilities related to his service. With regard to the claim of entitlement to service connection for hypertension, a May 2015 rating decision denied the claim for service connection for hypertension, and the Veteran submitted a disagreement in November 2015. As yet, an SOC does not appear to have been issued, and it is therefore proper to remand this issue to ensure that the Veteran is provided with a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240 41 (1999). The matters are REMANDED for the following actions: 1. Solicit a medical opinion from a clinician of appropriate expertise to determine the nature and etiology of the Veteran’s kidney disability, COPD, and hepatitis C. After reviewing all pertinent evidence, the examiner should address whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s kidney disability, COPD, and hepatitis C began during or was otherwise caused by his military service. The examiner should assume that the Veteran was exposed to Agent Orange during service, and a complete rationale for each opinion offered should be provided. 2. Issue an SOC addressing the claim of entitlement to service connection for hypertension. The Appellant should be informed of the period of time within which she must file a substantive appeal to perfect an appeal of this issue to the Board. (Continued on the next page)   3. After completing the above development, readjudicate the claims of entitlement to service connection for a kidney disability, COPD, and hepatitis C. If any decision is adverse to the Appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn, Counsel