Citation Nr: 18156412 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-24 313 DATE: December 11, 2018 ORDER Service connection for left shoulder condition is denied. Service connection for right toe injury is denied. REMANDED A higher evaluation for thoracolumbar degenerative disc and joint disease, currently evaluated as 10 percent disabling, is remanded. A higher evaluation for right lower extremity radiculopathy, currently evaluated as 10 percent disabling, is remanded. A higher evaluation for left lower extremity radiculopathy, currently evaluated as 10 percent disabling, is remanded. TDIU is remanded. FINDING OF FACT The Veteran’s service from August 28, 1980, through December 14, l983, resulted in an other than honorable discharge. Entitlement to service connection based on that period of service is precluded as a matter of law. CONCLUSION OF LAW The Veteran’s service from August 28, 1980, through December 14, l983, ended in an other than honorable discharge and is a bar to VA benefits based on that period of service. 38 U.S.C. §§ 101 (2), 5303; 38 C.F.R. § 3.12 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from March 28, 1974, to August 27, 1980, and under other than honorable conditions from August 28, 1980, through December 14, l983. See October 1989 Administrative Decision. The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released there from 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). 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 (i.e., the Army, Navy and Air Force) 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 claimant’s discharge classification - the claimant’s recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. See 38 C.F.R. § 3.13(b). Entitlement to VA benefits is determined by character of discharge at completion of unbroken service, i.e., where a conditional discharge was issued the entire period of service constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service. However, 38 C.F.R. § 3.13 Provides an exception if the following conditions are met: (a) the person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service; (b) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (c) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. A discharge is considered unconditional if the person served the original obligated term, but was not discharged due to reenlistment, and would have been eligible for discharge at the end of original term except for intervening enlistment. There are two types of character-of-discharge bars to establishing entitlement to VA benefits: (1) statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c), and (2) regulatory bars listed in 38 C.F.R. § 3.12(d). The statutory bars under 38 U.S.C. § 5303(a) are codified in 38 C.F.R. § 3.12(c), which states that 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; or (6) by reason of a discharge under other than honorable conditions issued as a result of being AWOL for a continuous period of at least 180 days. See 38 C.F.R. § 3.12(c). The final bar regarding AWOL status does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. In determining whether there are compelling circumstances to warrant a prolonged unauthorized absence, the length and character of service exclusive of the period of prolonged AWOL and the reasons for going AWOL should be considered. 38 C.F.R. § 3.12(c). The regulatory bars under 38 C.F.R. § 3.12(d) state that a discharge is considered to have been issued under dishonorable conditions for any of the following offenses: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude-this includes, generally, conviction of a felony; (4) willful and persistent misconduct; or, (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 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. See 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). A discharge or release from service under either the statutory or regulatory bars is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. See 38 U.S.C. § 5303 (b). Establishing causal connection between the insanity and the act(s) is not required. Struck v. Brown, 9 Vet. App. 145 (1996). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic conditions, 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 so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. See 38 C.F.R. § 3.354 (a). It should also be noted that there is no mens rea (criminal intent) requirement under this definition, and that merely knowing “right from wrong” does not preclude a finding of insanity or temporary insanity. An October 1989 administrative decision found there was no evidence to indicate the Veteran was not mentally responsible and was not able to distinguish right from wrong. It was also noted the veteran was considered to have been guilty of willful and persistent misconduct or his actions beginning as early as July 1982 for involvement with marijuana. Ultimately, it was determined that for the periods from August 28, 1980, through December 14, 1983, would be under dishonorable conditions. 1. Service connection for left shoulder condition is denied. The Veteran asserts service connection is warranted for a left shoulder condition. On his May 2015 VA Form 9, it was noted the Veteran’s left shoulder condition began during his active military service. The only mention of left shoulder issues within the Veteran’s service treatment records is in September 1983 when it was noted the Veteran had complaints of discomfort and tightness in his left shoulder area. A left shoulder strain was noted. However, for the period of service from August 28, 1980, through December 14, l983, the Veteran was discharged under other than honorable conditions. Thus, any disability related to that period of service must be denied based upon a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994).   2. Service connection for right toe injury is denied. The Veteran contends service connection is warranted for a right toe condition. His service treatment records from September 1981 show a crushing injury to his right great toe. However, as noted above, for the period of service from August 28, 1980, through December 14, l983, the Veteran was discharged under other than honorable conditions. Thus, any disability related to that period of service must be denied based upon a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. A higher evaluation for thoracolumbar degenerative disc and joint disease, currently evaluated as 10 percent disabling, is remanded. 2. A higher evaluation for right lower extremity radiculopathy, currently evaluated as 10 percent disabling, is remanded. 3. A higher evaluation for left lower extremity radiculopathy, currently evaluated as 10 percent disabling, is remanded. The Veteran was last afforded a VA examination to assess the severity of his service-connected back and bilateral radiculopathy disabilities in April 2018. However, in October 2018, the Veteran, through his representative, reported that his back and bilateral radiculopathy symptoms have increased in severity. As a result, there is an indication that the Veteran’s symptoms have increased in severity. To ensure the record reflects the current severity of the Veteran’s service-connected back and bilateral radiculopathy disabilities on appeal, a new examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 4. TDIU is remanded Because resolution of entitlement to TDIU is intertwined with the outcome of the claims being remanded, the Board will defer consideration of this issue. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claims. 2. Obtain an examination and opinion regarding the nature and etiology of any left shoulder condition. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any current left shoulder condition had its clinical onset during active service or is related to any incident of service. In providing this opinion, the examiner should acknowledge the following: (a.) The Veteran’s STRs showing he had a left shoulder strain and (b.) The Veteran’s separation examination showing he reported shoulder and joint issues. The examiner should elicit from the Veteran a complete history of his left shoulder symptomatology, including any in-service symptomatology and treatment; as well as his complete post-service history of left shoulder symptoms and treatment. 3. Obtain an examination and opinion regarding the nature and etiology of any right toe condition or any residuals associated with the right toe injury the Veteran sustained during his active service. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any current right toe condition or residuals had their clinical onset during active service or is related to any incident of service. In providing this opinion, the examiner should acknowledge the following: (a.) The Veteran’s STRs showing complaints of and treatment for a right toe injury and (b.) In February 2012, the Veteran reporting a problem with his right toe due to an injury he sustained while on active duty The examiner should elicit from the Veteran a complete history of his right toe symptomatology, including any in-service symptomatology and treatment; as well as his complete post-service history of right toe symptoms and treatment. 4. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected right lower extremity radiculopathy and left lower extremity radiculopathy. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaire should be filled out. 5. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected back condition. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaire should be filled out. In the examination report, the examiner must include all the following: (a.) Active range of motion testing results. (b.) Passive range of motion testing results. (c.) Weightbearing range of motion testing results. (d.) Nonweightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. (Continued on the next page).   The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck