Citation Nr: 18151424 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 12-32 305 DATE: November 19, 2018 ORDER Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The appellant’s character of discharge from September 19, 1994 to May 30, 1997 was under other than honorable conditions. 2. The appellant was not insane at the time of the misconduct for which he received his discharge. 3. The Veteran’s discharge from his period of service from September 19, 1994 to May 30, 1997 was the result of an offense involving willful and persistent misconduct. 4. The Veteran’s discharge as a result of an offense willful and persistent misconduct is a regulatory bar to the receipt of compensation benefits for his period of service from September 19, 1994 to May 30, 1997. 5. Resolving all reasonable doubt in favor of the Veteran, his right shoulder disability is related to an injury sustained during his honorable period of active duty service. 6. The Veteran’s left knee disability is not related to his honorable period of active duty service. CONCLUSIONS OF LAW 1. The character of the Veteran’s discharge for the period from September 19, 1994 to May 30, 1997 is a bar to VA compensation benefits for any disability related to that period of service. 38 U.S.C. § 5303 (2012); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2017). 2. The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Entitlement to service connection for a left knee disability is barred by regulation. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As noted in the Board’s June 2017 remand, the Veteran served on active duty from July 1990 to September 1994 and from September 1994 to May 1997. However, he received a discharge under other than honorable conditions for his period of service from September 1994 to May 1997, as reflected in his DD Form 214 and a March 2000 Administrative Decision. Although the Veteran stated in a June 2009 notice of disagreement that he was granted a medical discharge in 1997 due to the condition of his left knee and right shoulder, the evidence of record is against his contention. For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most 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 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360(b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. 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. 38 C.F.R. § 3.12(c). None of the statutory bars apply in this case. 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 court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, to include conviction of a felony; (4) willful and persistent misconduct, to include a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious; (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty, e.g. homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status. 38 C.F.R. § 3.12(d). The record reflects that the Veteran was discharged under other than honorable conditions based on willful and persistent misconduct. Specifically, he was charged with three offenses under the Uniform Code of Military Justice in October 1996 for: failure to obey a lawful order or regulation, assault, and indebtedness and dishonored checks. There is no indication in the record or assertion by the Veteran that he was insane at the time of the subject offenses. As such, the Board finds that the Veteran’s discharge under other than honorable conditions acts as a bar to compensation for any disability related to his period of service from September 1994 to May 1997. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Board notes that the Veteran’s service treatment records are unavailable, as evidenced in a March 2018 VA memorandum. In cases where a veteran’s service treatment records are unavailable through no fault of his own, there is a heightened obligation to assist the veteran in the development of the case. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); 38 U.S.C. § 5107(a); 38 C.F.R. §3.303(a). Where service treatment records are unavailable, the heightened duty to assist includes the obligation to search for alternative methods of proving service connection. See Moore v. Derwinski, 1 Vet. App. 401 (1991). “VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence.” Smith v. Derwinski, 2 Vet. App. 147, 148 (1992). The Board is also aware that when service records are unavailable through no fault of the veteran, VA has an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005), Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for a right shoulder disability The Veteran contends that he is entitled to service connection for a right shoulder disability related to an injury sustained during active duty service. The record reflects that the Veteran has a current right shoulder disability; however, the evidence is inconsistent as to when the subject injury occurred. The Veteran’s statements regarding the time and place of his in-service right shoulder injury varied throughout the course of the instant appeal, but resolving all reasonable doubt in his favor, the Board finds that the incident occurred during his honorable period of active duty service. The Veteran’s June 1990 entrance examination did not note any right shoulder abnormalities, and his accompanying report of medical history did not indicate any past shoulder problems. In an August 1999 Application for Compensation or Pension, the Veteran indicated that he suffered a right shoulder injury in 1992 while in San Diego, California. In a disability report dated April 2000 associated with his application for benefits with the Social Security Administration (SSA), the Veteran stated that he injured his shoulder in 1991 and had surgery performed on the shoulder in April 1995. In a November 2003 internal medicine consultation associated with his SSA application, the examiner noted that the source of the information was the Veteran and stated that he claimed that he injured his right shoulder in 1995 while serving in the Navy. The Veteran submitted statements by his parents and C.F. in August 2000 which supported his claim that his shoulder injury occurred during his military service; however, there was no specificity as to whether it took place during his first or second period of service. At an August 2002 VA examination, he indicated that he suffered a traumatic injury to his right shoulder in April 1995 when he was lowered over the side of a ship and was dropped while holding a rope, dislocating his shoulder. He further indicated he was evaluated at Elmendorf Air Force Base in Alaska where corrective surgery was performed. The examiner diagnosed the Veteran with arthralgia and laxity of the right shoulder, secondary to traumatic dislocation, status post right shoulder surgery. VA treatment records from June to November 2008 regularly noted that the Veteran underwent surgery on his right shoulder in 1995 for dislocation. In a June 2009 notice of disagreement, the Veteran stated that he was called for boarding ops in the Red Sea in 1992, and while being “hauled up to the ship” he was dropped and jerked, dislocating his shoulder and both collar bones. He indicated that he had recurring problems with his shoulder dislocating over the following three years, which prompted surgery in 1995. In a May 2014 Statement of Representative in Appeals Case, the Veteran’s representative indicated that the Veteran stated he incorrectly wrote “Red Sea” in his 2009 notice of disagreement, and the boarding incident actually took place in the Port of Honolulu. He further stated that radiology was performed and he was diagnosed with a right shoulder dislocation and given a medical profile. He indicated that he was then transferred to San Diego for further medical evaluation and permanent reassignment for the remainder of his active service. He stated that the condition of his shoulder improved considerably and he recovered basic function, with residuals of pain and some limitation of motion. He indicated he was later assigned to the Naval detachment at Elmendorf Air Force Base where he underwent surgery in 1995 to repair his torn shoulder muscle. While the Veteran’s statements have been inconsistent regarding the year in which he injured his right shoulder, when resolving all reasonable doubt in his favor, the Board finds that the evidence of record supports his claim for entitlement to service connection for a right shoulder disability. The Board notes that the Veteran’s service treatment records are almost completely unavailable and no private treatment records have been submitted reflecting the condition of his right shoulder around the time of his claimed injury. His shoulder was found to be normal at the time of his entrance into the military and there is no indication that the Veteran injured his right shoulder after his separation from service. In his original 1999 claim, he indicated that his right shoulder injury occurred in 1992. The Board notes that this was before the administrative decision was rendered, in March 2000, formally finding that his period of service from September 1994 to May 1997 was considered to be under dishonorable conditions for VA purposes. Although he subsequently also indicated in separate statements that the injury took place in 1991 and 1995, the Board notes that his June 2009 statement claimed that he initially injured his shoulder in 1992 but did not undergo surgery until 1995, effectively reconciling the inconsistencies. The August 2002 VA examiner determined that his right shoulder disability was the result of a traumatic dislocation, status post right shoulder surgery, and therefore the record indicates that the Veteran’s disability is related to his claimed in-service injury. As there is nothing in the evidence of record dated prior to the submission of his claim in 1999 disputing his contention that he injured his shoulder in 1992, the Board finds that the evidence is at least in relative equipoise concerning the period of service in which the injury occurred. Accordingly, entitlement to service connection for a right shoulder disability is warranted. 2. Entitlement to service connection for a left knee disability The Veteran contends that he is entitled to service connection for a left knee disability, as it is related to an in-service injury. The Board finds that the preponderance of the evidence indicates his claimed knee injury occurred during his period of service considered dishonorable for VA purposes, and it is therefore against a finding for entitlement to service connection for a left knee disability. In his August 1999 claim, the Veteran indicated that he injured his left knee in 1995. In the disability report dated April 2000 associated with his application for benefits with the SSA, the Veteran stated that he injured his knee in 1995 and had surgery in 1997. In the November 2003 internal medicine consultation associated with his SSA application, the examiner the Veteran claimed that he injured his left knee in 1997. The statements submitted by his parents and C.F. in August 2000 described above also supported his claim that his knee injury occurred during his military service; however, again there was no specificity as to whether it took place during his first or second period of service. A June 2008 VA treatment record noted left knee pain, status post arthroscopy for a torn meniscus in 1997. In his June 2009 notice of disagreement, the Veteran stated that he had surgery on his left knee in 1997. The Board finds that the preponderance of the evidence is against a finding for entitlement to service connection for a left knee disability. Regardless of whether the Veteran’s claimed injury occurred in 1995 or in 1997, either date falls within the Veteran’s period of service considered to be dishonorable for VA purposes. The record does not otherwise indicate that the Veteran’s left knee disability is related to an incident or injury which occurred during his eligible period of active duty service. As stated above, this acts as a regulatory bar for entitlement to service connection for a disability related to an incident or injury incurred during such a period, and the Veteran’s claim must be denied as a matter of law. See 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel