Citation Nr: 19134639 Decision Date: 05/03/19 Archive Date: 05/03/19 DOCKET NO. 16-22 354 DATE: May 3, 2019 ORDER As new and material evidence has been received, the claims for service connection previously denied on the basis that the Veteran’s character of discharge was a bar to the receipt of VA compensation benefits are reopened. The Veteran’s character of discharge is not a bar to the receipt of VA compensation benefits. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for chronic severe pain in the face and jaw as secondary to a TBI is remanded. Entitlement to service connection for migraine headaches as secondary to a TBI is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A July 2004 VA administrative decision held that the Veteran’s character of discharge is a bar to the receipt of VA compensation benefits. The Veteran did not submit a timely notice of disagreement or new and material evidence within the one-year appeal period, and the July 2004 decision is final. 2. The additional evidence received since the July 2004 administrative decision is new and material. 3. During his military service, the Veteran was convicted of two violations of the Uniform Code of Military Justice (UCMJ) due to his actions in May 1982. 4. The appellant’s discharge was because of a minor offense. 5. The appellant’s service was otherwise honest, faithful, and meritorious. CONCLUSIONS OF LAW 1. The July 2004 administrative decision that found that the Veteran’s character of discharge is a bar to the receipt of VA compensation benefits is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen of whether the Veteran’s character of discharge is a bar to the receipt of VA compensation benefits has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The character of the appellant’s discharge from military service is not a bar to the award of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1(d), 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1981 to February 1984. He received a bad conduct discharge. This case comes before the Board of Veterans’ Appeals (Board) from a January 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO adhered to its prior determination that the Veteran’s character of discharge is a bar to the receipt of VA compensation benefits. 1. Whether there is new and material evidence to permit reopening the issue of whether the Veteran’s character of discharge is a bar to the receipt of VA compensation benefits A rating decision is final and is not subject to revision upon the same factual basis, except upon a finding of clear and unmistakable error, where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273 (1996). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In March 2004, the Veteran filed claims for service connection for multiple disabilities, including posttraumatic stress disorder (PTSD), traumatic brain injury residuals (TBI), migraine headaches secondary to TBI, and chronic severe pain in the face and jaw secondary to TBI. In a July 2004 administrative decision, VA found that the Veteran’s character of discharge, which was a bad conduct discharge, is a bar to the receipt of VA compensation benefits. The Veteran did not submit a timely notice of disagreement or new and material evidence within the one-year appeal period. The July 2004 administrative decision is therefore final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The additional evidence received since the July 2004 administrative decision includes the Veteran’s testimony during his October 2018 Board hearing. As shown below, the Veteran’s testimony relates to the basis for the prior denial of benefits based on character of discharge and raises a reasonable possibility of substantiating his claim as to whether the Veteran’s character of discharge is a bar to the receipt of VA compensation benefits. As new and material evidence has been received with regard to the basis of the prior denial, reopening of the underlying service connection claims is warranted. 2. Whether the Veteran’s character of discharge is a bar to the receipt of VA compensation benefits 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). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (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 AWOL for a continuous period of at least 180 days. 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). For the following reasons, the Board finds that the character of the Veteran’s discharge is not a bar to his receipt of VA benefits. A review of the Veteran’s service records demonstrates that he was convicted of two violations of Uniform Code of Military Justice (UCMJ) Article 134 for being in possession of marijuana and wrongfully selling marijuana on May 11, 1982. In the context of the Veteran’s entire period of service and in the specific circumstances of this case, these were minor offenses. The evidence reflects that the Veteran’s service was otherwise honest, faithful, and meritorious. He did not receive any other disciplinary actions in his service. During his Board hearing testimony, the Veteran explained the circumstances of his conviction and indicated that it was due to being in the wrong place at the wrong time. The Board finds the Veteran’s testimony consistent with the other evidence of record and credible. Consequently, as the Veteran’s discharge was because of a minor offense, and his service was otherwise honest, faithful, and meritorious, it is not be considered willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). The character of the Veteran’s discharge is therefore not a bar to the receipt of VA compensation benefits. REASONS FOR REMAND 1. Entitlement to service connection for a TBI is remanded. 2. Entitlement to service connection for chronic severe pain in the face and jaw, to include as secondary to a TBI is remanded. 3. Entitlement to service connection for migraine headaches, to include as secondary to a TBI is remanded. 4. Entitlement to service connection for PTSD is remanded. As the Board has found that the character of the Veteran’s discharge is not a bar to his receipt of VA compensation benefits, consideration of the underlying service connection claims, on the merits, is warranted. The claims for service connection for PTSD, TBI, migraine headaches, to include as secondary to TBI, and chronic severe pain in the face and jaw, to include as secondary to TBI, are REMANDED for the following action: Adjudicate the Veteran’s claims of entitlement to service connection for PTSD, TBI, migraine headaches to include as secondary to TBI, and chronic severe pain in the face and jaw to include as secondary to TBI, on the merits. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.