Citation Nr: 1817002	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  10-24 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

Whether the Appellant has verifiable, qualifying service to establish veteran status.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant

ATTORNEY FOR THE BOARD

Jessica O'Connell, Associate Counsel 



INTRODUCTION

The Appellant's claimed active duty service is at issue in this case.  No service by the Appellant has been verified.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  Jurisdiction is now with the VA RO in New York, New York.

The Appellant's claim was last before the Board in January 2013, when it was remanded for additional development and readjudication.

In December 2017, the Appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Board notes that the issues originally certified to the Board included entitlement to service connection for a psychiatric disorder, service connection for a head and neck wound, service connection for a bilateral hip disability, and service connection for a bilateral leg disability.  As a threshold matter, veteran status must be established as a condition of eligibility in order to receive disability compensation benefits.  Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, an appellant must first establish veteran status").  Therefore, the Board has recharacterized the issue on appeal to reflect consideration of the threshold matter of demonstrating veteran status.  As explained more fully below, the Appellant has not demonstrated veteran status for the purpose of eligibility for disability compensation benefits.


FINDINGS OF FACT

1.  The Appellant's allegations about his military service are not inconsistent and lack credibility.

2.  The competent and probative evidence of record does not demonstrate that the Appellant served in the Armed Forces, reserve components, or the National Guard.


CONCLUSION OF LAW

The Appellant does not have verifiable, qualifying service to establish veteran status for the purpose of establishing eligibility for VA benefits.  38 U.S.C. § 101(2), (24) (2012); 38 C.F.R. §§ 3.1, 3.6, 3.203 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Appellant seeks disability compensation benefits from VA.  When certain conditions are met VA will provide compensation benefits to a veteran.  One of the requirements to qualify as a "veteran" for purposes of eligibility for VA disability compensation is active military, naval, or air service, or certain service in a reserve component or the National Guard.  38 U.S.C. § 101(2), (24); 38 C.F.R. §§ 3.1(d), 3.6.  In this case, the evidence reflects that the Appellant has neither.

The Appellant alleges various periods of service between 1976 and the early 1990s (although primarily between 1978 and 1982), including service in the Army, Air Force, Marine Corps, reserves, and National Guard.  The Board finds these allegations to be lacking credibility as they are inconsistent.  See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995).

In his original application for disability benefits, received by VA in January 1998, the Appellant claimed he served from 1978 to 1982 in Vietnam as a private and from 1985 to 1991 in the Persian Gulf as a military police officer.  He did not indicate that he served under any names other than the one he currently uses.  In a February 2008 claim, the Appellant indicated he served in the Army from 1978 to 1982.  

In a September 2009 letter, the Appellant indicated he did not remember much about his length and time of service in the Army, but that he served two separate times for approximately fourteen years total active service; during his first period of service, he claimed he was involved in a landmine explosion, his lieutenant commander thought he was deceased, and that his body was laid out in a coffin in Poland.  He further alleged that during his second period of service in Afghanistan, he was shot by rapid machine gun fire in the stomach, which caused him to have a mental breakdown.

In an April 2010 statement, the Appellant claimed he was so incapacitated by a landmine explosion during service that he did not remember much.  He asserted this explosion occurred approximately six and a half years into his service in 1986 and that he was hospitalized in Palermo, China.

In an August 2010 claim, the Veteran stated he entered service in December 1978 in St. Croix and that he was a Prisoner of War in Beirut and Mow Lang.  He did not indicate that he served under any names other than the one he currently uses.  

In a July 2011 Request Pertaining to Military Records (Standard Form 180), the Appellant indicated he served in the Army from 1978 to 1985 and that he was a Prisoner of War.  In an April 2012 Standard Form 180, the Appellant indicated he served in the Army from 1978 to 1985, with service in Saigon, Vietnam and Hong Kong, China.  In a September 2012 Standard Form 180, he did not indicate his dates of service, but reported serving in Granada and Afghanistan.  In another September 2012 Standard Form 180, the Appellant reported military service from 1978 to 1985 in Cambodia and Hanoi and indicated he had been a Prisoner of War.

In July 2013, the AOJ contacted the Appellant to obtain information about his service and the Appellant indicated that he first entered service in Chile, where he attended boot camp, and that he served with the "Army of the World."  In a January 2014 application for disability compensation benefits, the Appellant reported he was exposed to radiation and an explosion while he was serving in Nigeria and claimed he had been a Prisoner of War.  In an April 2014 statement in support of his claim, the Appellant indicated he did not remember where he entered active duty in 1978 and that he was separated from service in 1985 in St. Croix; he asserted his last organizational assignment was in postal mail distribution.  In a separate April 2014 statement, the Appellant stated he served in the military in the Vietnam conflict and in the "Beirut Lebanon war."  

In two separate August 2016 claims for benefits, the Appellant indicated he served in the Army, Marine Corps, and Air Force in the Middle East, that he did not serve under another other name other than the one he was currently using, and that he had been a Prisoner of War.  In one of those claims he reported active service and in the other he indicated he had reserve and National Guard service.  In an August 2016 intent to file, the Appellant reported he served in combat, had service in the United Kingdom and St. Croix, and that he did not serve under any name other than the one he was currently using; he denied any National Guard or reserve unit service.

At his December 2017 hearing, the Appellant testified that he had three periods of active service.  He stated he first entered service around the age of 19 or 20, around 1976 or 1977, in Missouri and completed boot camp there; he indicated he was a private lieutenant.  During his second period of service, somewhere between 1982 and 1985, he claimed he was deployed to South Korea, and had served somewhere in the Caribbean prior to being deployed to Asia.  During his third period of service he asserted he participated in boot camp in Germany sometime between 1990 and 1991, and achieved the rank of colonel.  He testified that he did not have any discharge papers from any of his periods of active service, but indicated that he did have an identification card from VA for the purposes of receiving medical treatment.  The Appellant further testified that he served his first period of service under the same name he uses now, but that when he was deported to South Korea and Germany that he served under a different name.  He indicated his military occupational specialty involved welding and "running the railroad."  With regard to his claim for service connection for a mental disorder, the Appellant stated he had been variously diagnosed as having bipolar disorder and schizophrenia.

The Board notes that the Appellant has undergone psychiatric treatment for schizophrenia for decades and the evidence raises concerns about his memory and reliability.  In support of his claims, he submitted an April 1997 private psychiatric treatment report which reflects he had a history of psychiatric hospitalizations and treatment for symptoms of noncompliance with medication, paranoid ideation, and belligerent behavior.  The portion of the report which discusses educational and employment history does not document any reports of military service.

VA has made several attempts to verify the Appellant's claimed service.  See 38 C.F.R. § 3.203 (2017).  These repeated attempts have all have come up negative.  The National Personnel Records Center (NPRC) has been contacted to verify the Appellant's alleged service on multiple occasions.  In August 2008 and April 2010, the NPRC reported that there was no record of the Appellant being on active duty in the military.  In June 2012, the Records Management Center (RMC) indicated it was unable to find any records relating to the Appellant's claimed service.  A June 2013 request for records was made to the Army Human Resource Command and a response was received that same month indicating that if any records were available, they would be located at the NPRC.  The record contains a June 2016 Administrative Decision outlining the attempts made to verify the Appellant's claimed service, and concluding that the Appellant lacked qualifying service and was not eligible for VA benefits.  

The Board recognizes that the Appellant received medical treatment through the VA Healthcare System, which reflects he had service from 1978 to 1982, and that he has submitted a photocopy of his Veterans Universal Access Identification card.  In June 2013, the AOJ contacted the VA New York Healthcare System patient enrollment center to determine if they had any documentation that was collected during the Appellant's enrollment, which was in 1998.  The AOJ was informed that at the time of the Appellant's enrollment, they most likely used a DD-214 or verified service through a computerized system.  However, at that time they were not required to scan a DD-214 into the system; therefore, even if one was used to enroll in the VA Healthcare System, it was unavailable.  

The Appellant has given wildly conflicting reports of his service and his assertions stretch the bounds of reality.  In summary, the Board finds that his claims regarding alleged military service are not credible and notes that despite repeated attempts with the appropriate agencies his alleged service has not been verified.  Based on the foregoing, the Board finds that the Appellant did not serve in the Armed Forces, reserve components, or the National Guard, and does not otherwise qualify for veteran status for the purpose of establishing entitlement to VA benefits.  While the Board is sympathetic to the Appellant's mental health condition, it is bound by the law and is without authority to grant benefits on an equitable basis.  38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).

Due Process Considerations

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).

Collectively, April 2008, August 2008, September 2008, April 2010, September 2010, August 2011, February 2013, April 2013, and August 2016 letters notified the Appellant that to substantiate his claim VA needed verification that he served in the U.S. Armed Forces, and that VA had been unable to locate any information that would help verify such service.  This information was requested from the Appellant.  These letters fulfilled VA's duty to notify in this case.  The Board notes that the Appellant has also demonstrated actual knowledge of what is needed to substantiate his claim through the submission of multiple statements regarding his alleged military service.

The duty to assist has also been fulfilled by VA.  As discussed above, VA made multiple attempts to verify the Appellant's alleged military service.  Although the Appellant claimed at his hearing that he served under a different name than the one he was using, this is the first time he has ever claimed this, and he has specifically denied serving under another name in multiple documents submitted to VA.  Therefore, the Board finds this allegation, as well as other claims about his supposed military service are not credible.  Further attempts to verify the claimed service would be futile and there is no reasonable possibility that any assistance VA would provide to the Appellant would substantiate the claim.  Therefore further assistance is not required.  See 38 C.F.R. § 3.159(c), (d); see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473, 486 (2006).

The Board also notes that all of its January 2013 remand directives were complied with.  The Board directed the AOJ to obtain outstanding private medical records, VA treatment records, and Social Security Administration (SSA) records; make further attempts to verify the Appellant's claimed service; and to readjudicate his claim in a Supplemental Statement of the Case.  VA medical records were obtained and associated with the evidence of record.  A March 2013 response from SSA reflects that no records are available, an April 2013 response from one private provider reflects the Appellant's records were destroyed, and another private provided failed to response to the AOJ's two requests for records.  The Appellant was notified of attempts to obtain private records and the unavailability of SSA records in accordance with VA regulation in April 2013.  The Appellant's claims were readjudicated in a February 2017 Supplemental Statement of the Case and thereafter properly returned to the Board.  Based on the foregoing, the Board finds there has been substantial compliance with its January 2013 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


ORDER

The Appellant does not have verifiable service to establish veteran status.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs