Citation Nr: 18144930 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 13-33 616 DATE: October 25, 2018 ORDER The character of the Veteran’s discharge for his second period of active service from October 31, 1964, to November 3, 1970, is a bar to Department of Veterans Affairs (VA) benefits. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. During his second period of active duty service, the Veteran went absent without leave (AWOL) from August 7, 1969, to August 16, 1970, for a total of 246 days, which was a period of over 180 days of continuous AWOL. 2. The Veteran requested and was granted an undesirable discharge from his second period of service to escape trial by general court-martial. 3. The Veteran’s second period of service from November 2, 1963, to November 3, 1970, was characterized as under other than honorable conditions in a separate DD Form 214. However, the Veteran would have been eligible for release or discharge under conditions other than dishonorable on October 30, 1964. 4. There is no indication in the record that the Veteran was insane at the time of the offense that led to his discharge. 5. Bilateral sensorineural hearing loss was not first manifested during the Veteran’s period of honorable active duty service or the first post-service year; the weight of the evidence is against a finding that hearing loss is related to the Veteran’s period of honorable service. 6. Tinnitus was not first manifested during the Veteran’s period of honorable active duty service or the first post-service year; the weight of the evidence is against a finding that tinnitus is related to the Veteran’s period of honorable service. CONCLUSIONS OF LAW 1. The character of the Veteran’s discharge for the period of service from October 31, 1964, to November 3, 1970, constitutes a bar to his receipt of VA compensation benefits for all diseases, injuries, or disabilities incurred or aggravated during that time. 38 U.S.C. § 5303 (2012); 38 C.F.R. § 3.12(b), (d)(1) (2017). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1961 to November 1963, and from November 1963 to November 1970. This matter is on appeal from a March 2012 rating decision. The Veteran’s period of service from October 31, 1961, to November 1, 1963, was characterized as honorable upon discharge on his DD Form 214. The period of service from November 2, 1963, to November 3, 1970, was characterized as under other than honorable conditions in a separate DD Form 214. An August 1999 administrative decision by the Nashville, Tennessee RO found that the Veteran’s discharge for the period of service from October 31, 1964, through November 3, 1970, constitutes a statutory bar to VA benefits under 38 C.F.R. § 3.12. The Veteran did not appeal this decision. The Board remanded this matter in August 2015 for additional development. In the August 2015 remand, the Board referred the issue of whether new and material evidence had been received to reopen the Veteran’s claim that his character of discharge during the period of service from October 31, 1964, through November 3, 1970, is not a bar to basic eligibility for VA benefits to the Agency of Original Jurisdiction (AOJ) for appropriate action. In March 2016, a Decision Review Officer found that the Veteran’s discharge for the period of October 31, 1964, through November 3, 1970, constituted a statutory bar to VA benefits. Although the Veteran did not specifically appeal the March 2016 decision, it is unclear whether he ever received it, as there is no cover letter indicating it was mailed to his current address of record. Moreover, in an August 2018 brief, the Veteran’s representative argued that the threshold matter of whether the Veteran’s character of service presented a bar to his entitlement to VA benefits did not represent a separate claim for benefits, but was an issue that was part of his pending claims for entitlement to service connection. The Veteran’s representative argued that this issue was properly before the Board. In light of the foregoing, the Board will take jurisdiction over this matter and adjudicate whether the character of the appellant’s discharge for the period of service from October 31, 1964, to November 3, 1970, is a bar to VA benefits. Whether the character of the Veteran’s discharge for the period of service from October 31, 1964, to November 3, 1970, is a bar to VA benefits The Veteran contends that his character of discharge for his period of service from October 31, 1964, to November 3, 1970, should not be considered a bar to VA compensation benefits. As noted above, the Veteran was separated from military service in November 1970 under conditions other than honorable. After carefully reviewing the evidence of record, the Board finds that the character of the Veteran’s discharge for his period of service from October 31, 1964, to November 3, 1970, is a bar to his receipt of VA compensation benefits for all diseases, injuries, or disabilities incurred or aggravated during that time. 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). 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). In this case, the applicable regulations are 38 C.F.R. § 3.12(c) and 38 C.F.R. § 3.12(d). Applicable here, the former provides that benefits are not payable where the former service member was discharged or released by reason of a discharge under other than honorable conditions issued as a result of AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). The latter provides that a discharge because the acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(1). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to 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). Here, the personnel records show the Veteran was AWOL from May 14, 1966, to May 16, 1966, and from May 17, 1966, to July 11, 1966. He was convicted by a special court-martial of these two specifications of AWOL. The Veteran was AWOL again from August 7, 1969, to August 16, 1970, for a total of 246 days, which was over 180 days of continuous AWOL. The Veteran was scheduled to be tried by a general court martial, but he requested to be discharged for the good of the service in lieu of trial by court martial. See, e.g., April 2014 Army Board for Correction of Military Records Record of Proceedings (noting that a DA Form 268, Report for Suspension of Favorable Personnel Actions dated August 24, 1970, showed the Veteran was pending a general court-martial/chapter 10) and October 1970 Request for Discharge for the Good of the Service in lieu of trial by general court martial. With respect to the relevant statutory bar at issue in this appeal, benefits are not payable where the former service member was discharged under other than honorable conditions as a result of AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6). However, this bar to benefit entitlement does not apply if there are compelling circumstances to warrant such prolonged unauthorized absence. The regulation outlines various factors to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. The Veteran and his representative have submitted reasons for the Veteran’s going AWOL and remaining so for a period of time exceeding 180 days. Included in these reasons were family hardships and the related circumstances. The Board has considered these arguments; however, the Board notes that compelling circumstances are only an exception to the bar to VA benefits imposed under 38 C.F.R. § 3.12(c)(6), relating to a discharge under other than honorable conditions for a period of at least 180 days of AWOL. As noted above, the Veteran was not merely discharged under other than honorable conditions as a result of being AWOL; the record shows that he accepted an undesirable discharge to escape trial by general court martial, which is considered under dishonorable conditions pursuant to 38 C.F.R. § 3.12(d)(1). Thus, the Veteran’s character of discharge is not a bar to VA benefits merely because he was AWOL for at least 180 days, as described in subsection (c)(6), but also because he accepted an undesirable discharge to escape trial by general court martial under subsection (d)(1). Therefore, even if the Board accepted the Veteran’s arguments regarding compelling circumstances for his prolonged period of AWOL, his discharge still would be dishonorable pursuant to 38 C.F.R. § 3.12(d)(1). The Veteran’s representative argues that § 3.12(d)(1) does not apply to this case because the Veteran did not “accept” an undesirable discharge. See August 2014 brief. The Veteran’s representative pointed to the October 1970 statement, which he argued only indicated that the Veteran wanted to be discharged for the good of the service and that he understood that he might be discharged “under other than honorable conditions and furnished an Undesirable Discharge Certification.” Thus, the representative contends that the most that can be said is that the Veteran “accepted” that there was a possibility that he would be discharged under other than honorable conditions and that an Undesirable Discharge Certification could be issued. The Board does not find this argument persuasive. On his October 1970 Request for Discharge for the Good of the Service, the Veteran indicated that he had been advised of the implications attached to his request, and his understanding of these implications, which included the possibility of receiving an undesirable discharge and being deprived of many or all VA benefits. Lastly, the Board still must address whether the bar to VA benefits should be overturned, based on the theory that the Veteran was effectively “insane” when he went AWOL during his military service. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Insanity is a defense to all possible statutory and regulatory bars to VA benefits. With regard to the defense of insanity, at the time of the commission of the Veteran’s period of AWOL totaling 246 days, the preponderance of the evidence does not demonstrate that he was considered “insane” as defined under 38 U.S.C.§ 5303(b) and 38 C.F.R. § 3.1 (b). The Veteran’s service treatment records do not contain any medical records just prior to, during, or subsequent to his period of AWOL which would support a finding of insanity. A history of mental illness was not documented on his entrance or separation examinations. Similarly, the claims file does not contain any medical records during, or since, his period of AWOL, containing a finding of insanity or any other mental illness. Significantly, the Veteran and his representative have not argued otherwise. Therefore, the Board finds there is no probative evidence of insanity at the time the offense in question was committed. Based on the foregoing, the Board finds that the character of the Veteran’s discharge for his period of service from October 31, 1964, to November 3, 1970, constitutes a bar to VA benefits for any disabilities arising during this period. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). While hearing loss disability and tinnitus are not diseases listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. As discussed below, the Veteran’s hearing loss disability has been described as sensorineural in nature; hence, the Veteran’s hearing loss, as well as his tinnitus, to the extent that they have been shown by the evidence as being disabling, may be considered for service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307 and 3.309. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran contends he has bilateral hearing loss and tinnitus related to his active duty service. Specifically, the Veteran reported an onset of hearing loss in 2007 and an onset of tinnitus in 1968. See July 2011 and January 2012 VA examinations. Later, he attributed his hearing loss and tinnitus to his in-service noise exposure during his combat service in Vietnam from October 1966 to May 1968. See November 2016 VA examination. He reports that he was chronically exposed to high levels of noise from artillery, mortars, and gunfire while in service without the use of hearing protection. He also reported post-service occupational noise exposure with the use of hearing protection. Notably, he did not associate his hearing loss with his first period of active duty service. As noted above, the character of the Veteran’s discharge for his period of service from October 31, 1964, to November 3, 1970, constitutes a bar to VA benefits for any disabilities arising during this period. As such, the Board will only consider whether the Veteran’s hearing loss and tinnitus are related to his period of service from October 31, 1961, to October 30, 1964. Thus, the question for the Board is whether the Veteran has hearing loss and tinnitus that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has hearing loss and tinnitus, which are chronic diseases under 38 C.F.R. § 3.309(a), his hearing loss and tinnitus were not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Veteran’s audiometric examination on October 16, 1963, at the time of his re-enlistment into active duty service, revealed excellent hearing, clinically normal in both ears. Moreover, the Veteran initially reported an onset of hearing loss in 2007, decades after his separation from service and decades outside of the applicable presumptive period. The Board acknowledges that the Veteran reported an onset of tinnitus in 1968 after returning from Vietnam; however, this is outside the presumptive period. Moreover, he attributed the onset to in-service noise exposure while serving in Vietnam, a period of service for which his character of discharge constitutes a bar to VA benefits for any disabilities arising during this period. Service connection for hearing loss and tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and tinnitus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The January 2012 VA examiner opined that the Veteran’s hearing loss is not at least as likely as not related to an in-service injury, event, or disease. The examiner’s rationale was based on the Veteran’s reports of an onset of hearing loss in approximately 2007; the findings of normal hearing on examination in October 1963; the findings of hearing in October 1963 that were at such good levels that it was extremely unlikely that there was any significant change in his hearing between 1961 and 1963; and his reports of post-service occupational noise exposure. The examiner acknowledged that a service treatment record dated October 6, 1964, documented complaints of difficulty hearing in the left ear. However, the examiner found that this hearing loss appeared to result from a left ear cerumen impaction that was resolved by irrigation of the left ear. The November 2016 VA examiner noted the Veteran’s contentions of hearing loss and tinnitus as the result of hazardous noise exposure during his combat service in Vietnam. The November 2016 examiner opined that the Veteran’s hearing loss and tinnitus are not at least as likely as not related to an in-service injury, event, or disease. As to the Veteran’s hearing loss, the examiner noted the normal hearing upon entrance into service in October 1961 and at the time of re-enlistment on October 16, 1963. The examiner noted that the service treatment records were silent for complaints, evaluation, or diagnosis of hearing loss with the exception of an October 6, 1964, treatment note documenting decreased hearing sensitivity in the left ear as the result of cerumen impaction, which appeared to have been resolved following irrigation of the ear for cerumen removal. The examiner did not find any evidence of significant shift in hearing thresholds during the Veteran’s honorable period of service from October 31, 1963, to November 1, 1963, according to the pure tone, air conduction audiograms of record. The November 2016 examiner indicated that at the time of his examination, the Veteran demonstrated a high-frequency, sensorineural hearing loss bilaterally, that was acquired post-military service. The examiner noted that research studies have shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first. The examiner noted that it does not have a delayed onset and it is not progressive or cumulative. Based on these studies, the examiner found that the Veteran’s hearing test at the time of his 1963 re-enlistment examination and 1970 separation examination accurately represented the effects of any hazardous noise exposure the Veteran sustained during his honorable period of active service. The examiner found no evidence of noise-induced auditory injury. As to tinnitus, the November 2016 examiner noted the Veteran’s reported onset of tinnitus “after he got back from Vietnam.” The examiner noted that the Veteran served in Vietnam from October 1966 to May 1968, and therefore, his discharge for this period constituted a statutory bar to VA benefits. While the Veteran believes his hearing loss and tinnitus are related to his in-service noise exposure during his combat service in Vietnam, as noted above, the character of discharge for this period of service constitutes a bar to VA benefits for any disabilities arising during this period. Moreover, the evidence does not support a finding that his hearing loss and tinnitus is related to his period of honorable service from October 31, 1961, to October 30, 1964. Accordingly, as the preponderance of the evidence is against the claims of service connection, there is no doubt to be resolved and service connection for bilateral hearing loss and tinnitus is not warranted. REASONS FOR REMAND The Board cannot make a fully-informed decision on the issues of entitlement to service connection for ischemic heart disease, hypertension, prostate cancer and diabetes mellitus, type II, because no VA examiner has opined whether any of these disabilities are related to the Veteran’s complaints of stabbing pain in the right side in September 1963, as instructed in the August 2015 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). While on remand, updated treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s ischemic heart disease, prostate cancer, hypertension, and/or diabetes mellitus, type II, are at least as likely as not related to his complaints of stabbing pain in his right side in September 1963. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs