Citation Nr: 18146324 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-58 781A DATE: October 31, 2018 ORDER The character of the appellant’s discharge for the period of service from July 20, 1965 to September 11, 1969, is a bar to his receipt of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code, for that period of service. Entitlement to service connection for a heart disorder, claimed as ischemic heart disease, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. During his military service, the Appellant was absent without leave (AWOL) on seven occasions. 2. For the Appellant’s period of service from July 20, 1965, to September 11, 1969, he was separated from military service under conditions other than honorable. 3. The Appellant’s offenses constituted willful and persistent misconduct. 4. The evidence does not suggest, and the Appellant has not alleged, that he was insane at the time of the offenses leading up to his discharge from service. 5. The Appellant’s currently diagnosed diabetes mellitus, heart disorder, and hypertension, were not manifest during his first period of service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between these disabilities and his active service. CONCLUSIONS OF LAW 1. The character of the Appellant’s discharge from his second period of military service, July 20, 1965 to September 11, 1969, is a bar to the award of VA benefits other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. § 5303 (West 2012); 38 C.F.R. §§ 3.1 (d), 3.12 (2018). 2. Type II diabetes mellitus, a heart disorder, and hypertension, were not incurred in or aggravated by service and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant had active duty service from June 1, 1962, to May 28, 1965, and from July 20, 1965, to September 11, 1969. The Appellant received an honorable discharge for the period of service from June 1, 1962, to May 28, 1965. The Appellant received other than honorable discharge for the period of service from July 20, 1965 to September 11, 1969; he is barred from receiving VA benefits based on such service for this period. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) regional office (RO). Character of Discharge When a person is seeking VA benefits, it first must be shown that the service member upon whose service such benefits are predicated has attained the status of veteran. 38 U.S.C. §§ 1110, 1131; see Cropper v. Brown, 6 Vet. App. 450, 452 (1994). The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). 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). None of the statutory bars apply in this case. As to the regulatory bars, the provisions of 38 C.F.R. § 3.12 (d) state that a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1 (n). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12 (d)(4). After carefully reviewing the record, the Board finds that the character of the appellant’s discharge for the period from July 20, 1965 to September 11, 1969 is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code for that period of service. A review of the appellant’s service records demonstrates that during his second period of service the appellant was AWOL on seven separate occasions. He was convicted by four different court martials on charges ranging from AWOL to wrongful communications of a threat to injure. His commanding officer recommended that he be discharged from service because of unfitness and be furnished an undesirable discharge. He waived his right to appear before a Board of Officers. An August 1969 report of examination shows that he was mentally responsible, able to distinguish right from wrong, and to adhere to the right, and he had the mental capacity to understand and participate in Board proceedings. He was diagnosed as having an emotionally unstable personality disorder. A May 1970 VA administration decision held that his discharge on September 11, 1969 was dishonorable under VAR 1012 (D)(4), willful and persistent misconduct. Service record showed that he accumulated 361 days of bad time as a result of periods of AWOL and confinement. He was convicted by four different special courts martial on charges ranging from AWOL to wrongful communication of threat to injure. He received a special upgraded discharge under Department of Defense Special Discharge Review Program on May 17, 1977. However, the Army Discharge Review Board did not affirm the upgraded discharge. He was given an unfavorable second review by the Army Discharge Review Board on May 25, 1978, under the provisions of Public Law 95-126. A July 1978 VA administration decision held that there is a statutory bar to VA benefits based on service from July 20, 1965 to September 11, 1969, due to unauthorized absence in excess of 180 consecutive days. After a review of all the evidence, the Board finds that the appellant’s actions of being AWOL seven separate times, constitute a pattern of willful and persistent misconduct and are a regulatory bar to VA benefits as defined under 38 C.F.R. § 3.12 (d)(4). The record shows that the pattern of misconduct clearly reflects deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1 (n). In Rogers v. Derwinski, 2 Vet. App. 419 (1992), the United States Court of Appeals for Veterans Claims (Court) affirmed a Board decision finding that two non-judicial punishments and initiation of a Special Court Martial with subsequent discharge for good of the service constituted a pattern of willful and persistent misconduct. This situation is similar to that in Rogers as the appellant was convicted by four different special courts martial and being AWOL on seven separate occasions. These offenses spanning a period of more than four years cannot be considered “a minor offense” as contemplated under 38 C.F.R. § 3.12 (d). For these reasons, the conduct of the appellant was willful and persistent misconduct, and his discharge is appropriately considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12 (d). The Board also finds that the appellant was not insane at the time of his willful and persistent misconduct. 38 U.S.C. § 5303 (b); 38 C.F.R. § 3.12 (b). In order for a person to be found to have been insane at the time of committing the offense, the insanity must be such that it legally excuses the acts of misconduct. Additionally, there must be a causal connection between the insanity and the misconduct in order to demonstrate that a claimant’s other than honorable discharge should not act as a bar to the grant of veterans’ benefits. Cropper v. Brown, 6 Vet. App. 450 (1994). The appellant has not made any allegations that he was insane at the time of the offenses that led to his discharge. In summary of the Board’s findings, the period of service from July 20, 1965 to September 11, 1969 was under conditions other than honorable; the discharge was not upgraded by a discharge review board established under 10 U.S.C. § 1553; the combination of offenses constitutes willful and persistent misconduct; and the appellant was not insane at any time during this period of service. Service Connection Claims The Appellant contends that his diabetes mellitus and heart disorder are related to herbicide agent exposure during his service in the Republic of Vietnam from August 1966 to August 1967 during his second period of service. He also contends that he has hypertension related to diabetes mellitus. As discussed above, the character of the Appellant’s discharge for the period of service from July 20, 1965 to September 11, 1969 is a bar to his receipt of VA benefits. He does not contend that his claimed diabetes mellitus, heart disorder, and hypertension are related to his first period of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as diabetes mellitus and organic heart disease, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, 38 U.S.C. § 1154 (a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board will initially discuss the Appellant’s contentions that he has type II diabetes mellitus and a heart disorder related to herbicide agent exposure during his second period of service. However, since he is barred from receiving benefits for this period of service which would trigger presumptive exposure to herbicide agents, service connection for diabetes mellitus and a heart disorder is not available on this basis. See 38 C.F.R. §§ 3.307, 3.309 Turning to the merits of the claims, the STRs are void of findings, complaints, symptoms, or any diagnoses of type II diabetes mellitus, hypertension, or a heart disorder. Post-service, VA treatment records include a June 2001 report which includes diagnoses of left subcortical stroke, type II diabetes mellitus, and hypertension. The Appellant was noted to have an 8-year history of diabetes mellitus (1993) and a 15-year history of hypertension (1986). Additional treatment records do not relate the Appellant’s claimed type II diabetes mellitus, heard disorder, and hypertension to his service. The Board finds that the claims must be denied. There is no medical evidence to show that the Appellant has type II diabetes mellitus, a heart disorder, or hypertension that is related to his service and, as previously addressed, there is no evidence of in-service herbicide agent exposure during his first period of service. Moreover, the Appellant’s STRs are void of any diagnosed type II diabetes mellitus, heart disorder, or hypertension. Post-service, medical records do not reflect or reference any history of type II diabetes mellitus until 1993, hypertension until 1986, and heart disorder until 2001. More importantly, there is no competent medical evidence to show that the Appellant has type II diabetes mellitus, hypertension, or a heart disorder that is related to his service. The mere absence of medical records does not contradict a Appellant’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the earliest post-service medical evidence of the Appellant’s disabilities is about 17 years after service. This long period without problems weighs against the claims. Continuity of symptomatology has also not been established, either through the competent evidence of record or through the Appellant’s statements. Finally, there is no competent medical evidence that the Appellant has type II diabetes mellitus, hypertension, or a heart disorder that is related to his service. While the medical evidence suggests that the Appellant has hypertension related to his type II diabetes mellitus, service connection has not been granted for type II diabetes mellitus. Therefore, type II diabetes mellitus may not serve as a predicate service-connected disability upon which to base his claim, and this claim based on “secondary” service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no evidence to show that a service-connected disability caused or aggravated hypertension. The Board has taken the Appellant’s contentions that his claimed type II diabetes mellitus, a heart disorder, and hypertension were caused by or related to his service with great care and detail. The Board has also closely reviewed the medical and lay evidence in the Appellant’s claims file and finds no evidence that may serve as a medical nexus between the Appellant’s service and his claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of type II diabetes mellitus, a heart disorder, and hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for type II diabetes mellitus, a heart disorder, and hypertension, and there is no doubt to be otherwise resolved. As such, these claims are denied. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel