Citation Nr: 18151492 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 14-18 416 DATE: November 20, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for vertigo, to include as due to hearing loss and tinnitus, is denied. FINDINGS OF FACT 1. The appellant’s separation from his period of active service from November 1988 to December 1990 was dishonorable for VA purposes by reason of a general court-martial and the evidence did not show that the appellant was insane at the time of the offense he committed while on active duty and which served as the basis for his dishonorable discharge. 2. The character of discharge is a bar to establishing service connection. CONCLUSIONS OF LAW 1. The March 2017 administrative decision that found that the Veteran’s character of discharge was a bar to VA benefits and was under dishonorable conditions for VA purposes is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.12. 2. The character of the appellant’s discharge from active service for the period from November 1988 to December 1990 is a bar to VA benefits. 38 U.S.C. § 5303; 38 C.F.R. § 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from November 1988 to December 1990 and separated . This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. That rating decision denied service connection for hearing loss, tinnitus, and vertigo. The Board notes that a March 2017 administrative decision by the RO found that the appellant’s discharge for his entire period of service from November 1988 to December 1990 was under dishonorable conditions, and thus a bar to VA benefits under 38 C.F.R. § 3.12(d)(4). The appellant filed a notice of disagreement to that finding in June 2017. In March 2018, the Board remanded for issuance of a statement of the case. A statement of the case was issued in March 2018. VA did not receive any response, and thus a timely appeal to that decision was not perfected. The case has returned to the Board. The appellant had one year from the March 2017 administrative decision or 60 days after the March 2018 statement of the case to perfect an appeal. 38 C.F.R. § 20.302. As VA did not receive an appeal in a timely manner, the finding of a dishonorable conditions character of discharge is final. A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. Pension, compensation, or dependency and indemnity compensation is not payable unless the term of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Service department findings are binding and conclusive upon VA for purposes of establishing an individual’s service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000). VA has no authority to alter the appellant’s discharge classification. The appellant’s recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). 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. The Board has reviewed the appellant’s service medical records. None of the appellant’s reports of medical examination show any abnormal psychiatric evaluation or findings, or claims of insanity by the appellant. The appellant’s service records indicate that the appellant was sentenced by general court-martial in July 1990 after a finding of guilt on various charges. The administrative decision finding that the character of discharge for VA purposes is under dishonorable conditions, and thus a bar to VA benefits, is final. Thus, because the appellant's service was terminated by discharge under dishonorable conditions, and insanity at the time of the commission of the offenses in service is not shown or alleged, the appellant is not entitled to benefits. 38 C.F.R. § 3.12(a). Service connection can be established only for disabilities related to service in which the disability was incurred from which the Veteran was discharged under conditions other than dishonorable. 38 U.S.C. § 1110. In cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The character of the appellant’s discharge for his entire period of service is a bar to VA benefits. 38 C.F.R. § 3.12. Thus, the claim is denied because of the absence of legal merit. Accordingly, the Board must deny the appellant’s claims of entitlement to service connection for bilateral hearing loss, tinnitus, and vertigo as the character of separation from service of under dishonorable conditions is a bar to VA benefits for those claimed disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk