Citation Nr: 20007501 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-32 843 DATE: January 29, 2020 ORDER New and material evidence has been received sufficient to reopen the issue of whether the Appellant has verifiable military service in order to establish status as a veteran for VA purposes. REMANDED The issue of whether the Appellant has verifiable military service in order to establish status as a veteran for VA purposes is remanded. FINDINGS OF FACT 1. In a June 2009 decision, the Regional Office denied the Appellant’s claim of entitlement to status as a veteran for VA benefits purposes. The Appellant did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it became final. 2. Evidence has been received since the June 2009 decision that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of entitlement to status as a veteran for VA benefits purposes. CONCLUSIONS OF LAW 1. The June 2009 decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the June 2009 denial of entitlement to status as a veteran. 38 U.S.C. §§ 5103, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant contends that he served honorably with the United States Army from approximately December 1964 to December 1968, including service in the Republic of Vietnam. To date, such service has not been verified. The matter on appeal arises from a June 2016 administrative denial. In November 2019, the Appellant testified before the undersigned in a Travel Board hearing. A transcript of the proceedings has been associated with the record. 1. New and material evidence has been received sufficient to reopen the issue of whether the Appellant has verifiable military service in order to establish status as a veteran for VA purposes Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decision makers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied the Appellant’s claim in a June 2009 administrative decision due to lack of verifiable military service. The May 2009 formal finding of unavailability associated with the denial cited the absence of the Appellant’s service number in the initial search for records. Since that rating decision, the Appellant submitted his Selective Service Registration Card and a list of Selective Service registrants with their draft classifications. Additionally, the Appellant provided two possible service numbers that he believed to be his service number in June 2017 and September 2019 correspondences, as well as detailed information about his units and deployment to Vietnam. The Board notes that Selective Service documents, including registration information, are held by the Selective Service System, an independent agency within the Executive Branch, which is not associated with the Department of Defense. These documents were received from the Appellant, and not a result of additional searches by VA or the declassification of records that could not previously be obtained. As a result, Selective Service documentation does not fall under the service department records exception to 38 C.F.R. § 3.156(c). The bar to reopening a claim for new and material evidence is low, and the Appellant’s submissions regarding his service number and details of his service meet that threshold. Therefore, such evidence is new and material, and the claim is reopened. REASONS FOR REMAND 1. The issue of whether the Appellant has verifiable military service in order to establish status as a veteran for VA purposes is remanded. The Board regrets the additional delay, but remand is necessary in order to conduct a thorough search of records pertaining to the Appellant’s claimed military service. In the Appellant’s original claim for VA benefits submitted in January 2009, he reported that he served on active duty in the Army from September 10, 1964 to December 8, 1968, with rank of E-5. He reported both his place of entry and place of separation as Fort Bragg, NC. He also reported that he was in Vietnam from 1965 to 1967. He did not report any reserve duty. A SHARE print screen of Beneficiary Identification Records Locator Subsystem (BIRLS) dated January 20, 2009 shows that the Appellant’s service dates were entered as from September 10, 1964 to December 8, 1968, but these dates were not verified. In a Vet Center information form dated in January 2009, the Appellant denied being wounded or injured in service or receiving the Purple Heart. With respect to his military and war zone history, he reported that his military occupational specialty (MOS) was instruction/training troops. He could not remember his initial place of duty in a war zone. He stated that his official duty in a war zone was a training course, but that his actual duties included training, driving a jeep, radio control, and being a medic. He reported that he was assigned to the 182 Bn Co 2 and in combat for 14 months. A request for the Appellant's DD 214 and service treatment records was sent to the National Personnel Records Center (NPRC) in February 2009. A response from the NPRC was received in March 2009 stating that the Appellant’s records could not be located without his service number. In October 2009, a representative from the NPRC called the RO requesting copy of the Appellant’s DD Form 214 or separation document. The RO employee pulled and reviewed the Appellant’s claims folder and then responded to the NPRC representative that the document requested was not of record. In September 2010, the National Personnel Records Center (NPRC) responded to a request by the Appellant and notified him that they were unable to locate his military service record. It was noted that the record had previously been removed from the file area in order to respond to a prior inquiry, but had since been misplaced. As an aside, the Board notes that the Appellant’s record was likely removed from the file area in February 2009, when NPRC responded to VA’s request for the Appellant’s DD 214 and service treatment records. In November 2012, the Appellant received a letter from the VA Health Eligibility Center in response to a correspondence he had sent to the President. The letter confirmed the Appellant’s enrollment in the VA health care system, and placed him with the group dedicated to veterans with Vietnam service. The basis for this confirmation is not reported in the correspondence. However, a July 2015 note from a legal administrative specialist at the VA Health Eligibility Center indicates that they relied on a review of BIRLS, SHARE, and HINQ in confirming the Appellant’s service. In a claim for VA benefits submitted in September 2014 and in an April 2015 Report of General Information, the Appellant reported that his place of separation was Fort Benning, GA, rather than Fort Bragg, NC, as he had previously reported. He also reported that he was assigned to the 82nd Airborne, Company 3, Division 2, Unit 505. (Of note, it is unclear whether the 82nd Airborne was present in Vietnam between 1965 and 1967. See https://www.military.com/daily-news/2018/02/12/golden-brigade-marks-50th-anniversary-vietnam-deployment.html). In a March and April 2016 Reports of Information, the Appellant reported that he served in the 503rd Infantry Regiment of the 173rd Airborne Division, 2nd unit, and received a Bronze Star in November 1965. He stated that he was in Bien Hoa/Ho Chi Minh City. He also mentioned working with the 82nd Squadron and 101st Squadrons but did not expressly state he was assigned to either one. In a claim for VA benefits submitted in July 2016, the Appellant denied ever serving in the Reserves. However, in a November 2016 Questionnaire about Military Service he reported that he served in the Army Reserves from December 1968 to August 1971. An Extract of Selective Service Classification History shows that the Appellant was classified as 1-A, available for military service, on January 14, 1964 and July 20, 1967. However, he was classified as 4-F, not qualified for military service, on May 4, 1965 and August 15, 1968. He underwent Armed Forces Physical Examinations on April 13, 1965 with results characterized as “Not Acceptable;” on August 1, 1967 with results characterized as “Delinquent;” and on July 30, 1968 with results characterized as “Not Acceptable.” A January 2016 response from NPRC stated that the index on file failed to show a reception station at Fort Bragg, NC, in September 1964 or a separation station at Fort Benning, GA, in 1968. At his hearing before the Board in November 2019, the Appellant testified that he was assigned to the 82nd Airborne, served in South Saigon, and received the Purple Heart and the Medal of Honor but he had lost them over the years. He stated that his MOS was “training the guys to be safe.” Multiple Personnel Information Exchange Systems (PIES) requests yielded no results for the Appellant’s military record. These searches were based on the Appellant’s reported dates of service, as well as his social security number. The responses, however, requested the Appellant’s service number in order to complete the searches. Only one inquiry used a service number as the basis for the search, and the Appellant subsequently provided a different service number in September 2019 that was not used in a PIES inquiry. On remand, an additional request should be made for the Appellant’s military record using his service number as reported in September 2019. Further, a request for his complete selective service records should be made, to include copies of his Armed Forces Physical Examinations conducted on April 13, 1965, August 1, 1967, and July 30, 1968. The matters are REMANDED for the following action: 1. Obtain all relevant records regarding the Appellant’s draft selection and/or service from the Selective Service System, to include, but not limited to, include copies of his Armed Forces Physical Examinations conducted on April 13, 1965, August 1, 1967, and July 30, 1968. See Extract of Selective Service Classification History prepared by B.A. on January 13, 2015 (uploaded in Caseflow on November 16, 2016, labeled as Military Personnel Record). 2. Contact the NPRC, or other appropriate source, and request them to provide all service personnel records (DD-214, etc.) from the Appellant’s Official Military Personnel File (OMPF) based upon the service number provided by the Appellant in September 2019. See Correspondence from the Appellant received on September 3, 2019. (Continued on the next page)   3. If the Appellant’s military records cannot be located or his service cannot be verified, produce a formal finding for the record detailing each of the searches and their individual results. Provide these findings to the Appellant and his representative, and afford them an opportunity for response. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Appellant and his representative an opportunity to respond, and return the case to the Board. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, Associate Counsel 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.