Citation Nr: 20021568 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-21 904 DATE: March 26, 2020 ORDER New and material evidence not having been submitted, the claim that the appellant’s discharge from military service in February 1980 did not constitute a bar to VA benefits is not reopened; the appeal is denied. Service connection for anemia, for treatment purposes only, is denied. Service connection for a skin disability, for treatment purposes only, is denied. Service connection for a foot disability, for treatment purposes only, is denied. Service connection for hypertension, for treatment purposes only, is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), for treatment purposes only, is denied. FINDINGS OF FACT 1. A May 2002 Regional Office (RO) decision determined that the appellant’s discharge from military service in February 1980 constituted a bar to VA benefits. 2. The evidence received since the RO’s May 2002 rating decision, which was not previously of record, and which is not cumulative of other evidence of record, does not reasonably raise a possibility of substantiating the claim. 3. The appellant does not have anemia as a result of his service. 4. The appellant does not have a skin disability as a result of his service. 5. The appellant does not have a foot disability as a result of his service. 6. The appellant does not have hypertension that is related to his service. 7. The appellant does not have an acquired psychiatric disorder, to include PTSD, that is related to his service. CONCLUSIONS OF LAW 1. New and material evidence has not been received, the May 2002 RO decision, which held that the appellant’s discharge from military service in February 1980 constituted a bar to VA benefits, the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for anemia, for treatment purposes only, have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 3.360. 3. The criteria for service connection for a skin disability, for treatment purposes only, have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.360. 4. The criteria for service connection for a foot disability, for treatment purposes only, have not been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.360. 5. The criteria for service connection for hypertension, for treatment purposes only, have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.360. 6. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, for treatment purposes only, have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.360. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had service from August 1976 to February 1980, which was terminated under other than honorable conditions. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA in May 2018 indicating the appellant’s desire to have his claim processed as a Supplemental Claim under the Appeals Modernization system. However, the election form was unsigned by the appellant and is therefore not eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case in the legacy review system. The Board notes that although additional medical evidence has been received subsequent to the March 2017 Statement of the Case, the Board has determined that this evidence is not “pertinent” as defined at 38 C.F.R. § 20.1304(c). Accordingly, a remand for RO consideration is not required. 1. New and Material. The issue is whether new and material evidence has been presented to reopen the issue of whether the character of the appellant's discharge is a bar to VA benefits. The appellant seeks to reopen a claim that the character of his discharge should not be a bar to receipt of VA benefits. He essentially argues that his “time in service” warrants a reopening and grant of his claim. See Veteran’s appeal (VA Form 9), received in April 2016. In May 2002, the RO determined the appellant’s period of service from August 1976 to February 1980 was under other than honorable conditions, which constituted a bar to the award of veteran’s benefits based on that period of service. See 38 C.F.R. § 3.12(d)(4). The RO indicated that its review was based on the facts and circumstances of his discharge. The appellant did not appeal that determination, and thus, the RO’s decision became final. See 38 U.S.C. § 7105(c). In October 2011, the Veteran filed to reopen the claim. In August 2013, the RO determined that new and material evidence had not been presented to reopen the claim. Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Kightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156(a). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). If the former service member did not die in service, compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). A discharge or release because of willful and persistent misconduct will be considered to have been issued under dishonorable conditions. Willful and persistent misconduct includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(b)(4). The burden is on the claimant to establish, by a preponderance of the evidence, that he is a “veteran” (with a qualifying discharge), and the reasonable doubt doctrine does not apply in such a case. D’Amico v. West, 12 Vet. App. 264 (1999). The most recent and final denial of this claim was the RO’s decision dated in May 2002. The evidence of record at the time of the RO’s decision included some of the appellant’s service treatment reports, including the appellant’s separation examination report, dated in January 1980, which showed that his psychiatric condition was clinically evaluated as normal. In an associated report of medical history, the appellant indicated that he did not have a history of depression or excessive worry, or nervous trouble of any sort. The Veteran’s discharge (DD Form 214) showed that his character of service was listed as “other than honorable conditions,” and that the narrative reason for separation was “frequent involvement in incidents of a discreditable nature with civil or military authorities.” In May 2002, the RO stated the following: The appellant was given an other than dishonorable discharge for a pattern of misconduct (frequent involvement in incidents of a discreditable nature with civil or military authorities as reported on the DD 214). Conditional discharge was not considered because the claimant only had one period of service which he did not satisfactorily complete. The service records show that the appellant served satisfactorily for two years, with no apparent reason or cause noted in the file, the claimant began a pattern of misconduct which started October 1979 to January 1980. The misconduct consisted of one account of possession of a controlled substance, sleeping on duty, disobeyed a lawful order, failure to repair, and dereliction of duty. The claimant was found guilty by special court martial for possession of marijuana (27 grams) and wrongfully selling marijuana. He was sentenced to confinement at hard labor for three months, forfeiture of $299.00 pay per month for three months, and reduction to the grade of Private E 1. The service record shows that the claimant was given an opportunity to correct his deficiencies in his performance by given correctional training and treatment. It was noted in his file that the claimant possessed the mental and physical ability necessary to be an effective soldier but failed to react constructively to the rehabilitation program. The RO determined that the appellant’s discharge for the period of December 8, 1976, to February 15, 1980, is dishonorable for VA purposes in accordance with 38 C.F.R. § 3.12(d)(4), and that the appellant was not entitled to VA benefits. The RO further determined that the appellant was entitled to health care under Chapter 17, 38 § C.F.R. 3.360 for any disabilities determined to be service connected. Evidence received since the RO’s May 2002 decision includes additional service treatment records, post-service medical treatment reports, and reports from the Social Security Administration (SSA). This evidence, that was not of record at the time of the May 2002 RO decision, is not cumulative; thus, it is “new” within the meaning of 38 C.F.R. § 3.156. However, the Board finds that this evidence is not material. None of this evidence contains any pertinent information related to the character of the Veteran’s discharge. See 38 C.F.R. § 3.12. The claim is therefore not reopened. Shade v. Shinseki, 24 Vet. App. 110, 119-21 (2010). As such, the Board finds that new and material evidence has not been submitted to reopen the issue of whether the character of the Veteran’s discharge is a bar to VA benefits. The claim is therefore not reopened and the appeal is denied. 2. Service Connection. The appellant asserts that service connection, for treatment purposes only, is warranted for anemia, a skin disability, a foot disability, hypertension, and an acquired psychiatric disorder, to include PTSD. In this regard, the appellant’s claim for PTSD has been characterized broadly, as stated on the cover page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board first notes that with regard to the issues of service connection for treatment purposes for a skin disability, a foot disability, hypertension, and an acquired psychiatric disorder, to include PTSD, these claims were denied in final decisions, dated in May 2005 (hypertension), and in August 2013 (hypertension, a foot disability, PTSD, and a skin disability). However, when VA has issued a decision on a claim, and subsequently receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file at the time of the prior decision, VA must reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1). In such cases, consideration of the claim based on new and material evidence is not required. Id. In this case, it appears that a significant number of the Veteran’s service treatment records were associated with his claims file subsequent to the RO’s August 2013 decision. Accordingly, the claims for service connection for hypertension, a foot disability, PTSD, and a skin disability will be analyzed without regard to the provisions covering “new and material” provisions for reopening of claims. Id.; 38 C.F.R. § 3.156(c). With regard to the claim for anemia, this claim was first denied in May 2014. Health care and related benefits authorized by Chapter 17 of title 38 U.S.C. shall be provided to certain former servicepersons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty. 38 C.F.R. § 3.360(a). With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions. Such benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360 (b). In this case, the appellant has not been found to have any of the bars listed in 38 C.F.R. § 3.12(c) due to his other than honorable discharge, but he has been found to have willful and persistent misconduct pursuant to 38 C.F.R. § 3.12(d)(4). This finding allows for the appellant to still be eligible for medical treatment for a current disability that is found to have been incurred or aggravated in his active duty service. In making determinations of health-care eligibility, the same criteria will be used as is now applicable to determinations of service incurrence and in line of duty when there is no character of discharge bar. 38 C.F.R. § 3.360(c). Service connection, including service connection for treatment purposes only, will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(a), 3.360(c). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” See 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Hypertension and primary anemia can be service connected on such a basis. The appellant’s service treatment records show that in December 1976, the appellant was treated for bilateral foot blisters. In January 1977, the appellant was noted to have an ulcerative lesion on his right foot. In May 1978, the appellant sought treatment for left foot bleeding involving a toenail. The assessment was questionable onychomycosis. A September 1979 report shows that the appellant received a physical profile for a facial infection secondary to pseudofolliculitis. A January 1980 mental status evaluation, apparently performed in association with the appellant’s discharge, showed that the appellant was noted not to have a significant mental illness, and that he was found to be mentally responsible, to have the capacity to distinguish right from wrong, and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings. He was noted to be fully oriented, with level mood and normal thought content, clear thinking process, and good memory. The appellant’s separation examination report, dated in January 1980, shows that his vascular system, feet, skin, and psychiatric condition, were clinically evaluated as normal. In an associated report of medical history, the Veteran indicated that he did not have (at the time or in the past) skin disease, high or low blood pressure, lameness, foot trouble, nervous trouble of any sort, or depression or excessive worry. See also March 1977 report of medical history (reflecting the same). As for the post-service medical evidence, none of the claimed conditions are shown prior to 1998. See e.g., June 2000 report from the SSA (noting a history of hypertension since 1998). Private treatment reports note diabetes mellitus, type 2 (1998), a plantar fibroma of the right foot (2005) and high blood pressure (2008). A private treatment report, dated in November 2012, shows that the appellant was noted to have complained of an increasing disruption to his short-term memory and his ability to concentrate since the start of 2012. It was noted that, “this can in part be traced back to the existing extended medication.” Other private treatment reports, dated in 2012, note renal insufficiency, stage IV, “with DD of diabetic nephropathy” and hypertensive nephropathy, and renal anemia. It was noted that the appellant reported a subjective intolerance of the existing Gabapentin medication with concentration problems and increasing forgetfulness. He reported continued dry and scaly skin. A decision of the SSA, dated in January 2008, shows that the appellant was determined to have been disabled as of November 1998, with a severe back disability and heart disease. The Board finds that the evidence is insufficient to show that the appellant has any of the claimed conditions that are related to his service. During service, he was treated for skin disorders involving his feet and face. However, none of the claimed conditions were shown upon separation from service, or within one year of separation from service. There is no evidence to show primary anemia or hypertension within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Following separation from service, none of the claimed conditions are shown prior to 1998. This is about 18 years after separation from service. There is no competent evidence to show that the appellant has PTSD. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). There is no competent evidence of record in favor of any of the claims. The Board therefore finds that the preponderance of the probative and competent evidence weighs against the claims, and the claims are denied. With regard to the appellant’s own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s service treatment reports and post-service medical records have been discussed. The Board has determined that chronic conditions are not shown during service, nor are the currently demonstrated conditions caused by his military service. Given the foregoing, the Board finds that the evidence outweighs the Veteran’s contentions to the effect that he has the claimed conditions due to his service. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.