Citation Nr: 21000501 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-18 006 DATE: January 5, 2021 ORDER Service connection for left upper extremity (LUE) disability is denied. Service connection for left lower extremity (LLE) disability is denied. FINDINGS OF FACT 1. The appellant was administratively separated from service following his conviction by civilian authorities for battery and commission of the serious offense of indecent act upon a child during his period of service from March 9, 2001, from October 14, 2003. His discharge was characterized as other than honorable. 2. The preponderance of the evidence is against finding that the appellant has a LUE disability that had its onset in or is otherwise etiologically related to injury or disease associated with his honorable period of active service from August 1997 to March 8, 2001. 3. The preponderance of the evidence is against finding that the appellant has an LLE disability that had its onset in or is otherwise etiologically related to injury or disease associated with his honorable period of active service from August 1997 to March 8, 2001. CONCLUSIONS OF LAW 1. The appellant’s character of discharge (other than honorable) for his service period from March 9, 2001 to October 2003 is a bar to VA benefits for disability incurred during that period of service. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.13. 2. The criteria for service connection for a LUE disability, based on an eligible period of service, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for LLE disability, based on an eligible period of service, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 19, 1997, to March 8, 2001. He had a second period of service from March 9, 2001, to October 14, 2003, which was characterized as other than honorable. He was administratively separated from this period of service after he was convicted by civilian authorities for battery and investigated for an indecent act upon a child during his second period of service. The Veteran was evaluated for back problems in service beginning July 2001 and underwent back surgery for a congenital L1 hemivertebra with associated kyphotic deformity in January 2002 during his period of other than honorable service. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2019 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In November 2019, the Board remanded the appeal. The Board finds that there has been substantial compliance with the Board’s prior remand directives. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for LUE disability 2. Service connection for LLE disability The appellant contends that he has LUE and LLE disability related to an in-service back condition and surgery. Specifically, he has contended during the appeal period that he had “no pain or problems with [his] body until after [he] had back surgery” and later testified that left leg pain began before back surgery, but LUE pain started after back surgery. See Hearing Transcript (May 2019). In order to qualify for VA benefits, an appellant must demonstrate that he has veteran status. Struck v. Brown, 9 Vet. App. 145, 152 (1996). 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 person seeking to establish veteran status must do so by a preponderance of the evidence; the benefit-of-the doubt doctrine is not applicable to that determination status. Struck, 9 Vet. App. at 152; see also Laruan v. West, 11 Vet. App. 80 (1998) (overruled on other grounds by D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000)). 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). The statutory bars under 38 U.S.C. § 5303(a) are not applicable here. See 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. (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 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. 38 C.F.R. § 3.12(b). An insane person is one who, due to a disease (1) “exhibits... a more or less prolonged deviation from his normal method of behavior”; (2) “interferes with the peace of society”; or (3) “has so departed... 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.” Struck, 9 Vet. App. at 152 (quoting Zang v. Brown, 8 Vet. App. 246, 253 (1995)). Here, the available evidence, including the guilty conviction, shows that the appellant was not insane at the time of committing the offense in this case. 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). A discharge to reenlist is a conditional discharge if it was issued during Peacetime service; prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13(a)(3). 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. 38 C.F.R. § 3.13(b). 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. 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. 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. 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. In this case, an April 2004 administrative decision reflects that the appellant was guilty of misconduct and commission of a serious offense. As such, his period from March 9, 2001, to October 14, 2003, was characterized as under dishonorable conditions due to the appellant’s commission of a serious offense, described as an indecent act upon a child under sixteen, and his civil conviction of violating California Penal Code 242A (Battery). See Military Personnel Record (October 2002). The appellant testified that in 2000 he sought treatment on base at Balboa Hospital for left leg pain and was referred to surgery which took place in January 2001. See Hearing Transcript (May 2019). STRs reflect no complaints of or treatment for LUE or LLE conditions prior to March 9, 2001. STRs reflect that he visited sick call on July 9, 2001, during his Other Than Honorable period of service, VA purposes dishonorable, to report a four-month history of back pain. See STR (October 2002). On a September 2001 5-year physical, the Veteran had clinically normal upper and lower extremities; he denied swollen and painful joints but reported a history of occasional leg cramps during high school football or due to excessive exercise and bone, joint, or other deformity and recurrent back pain due to congenital L2 hemivertebrae. He underwent a L1 vertebrectomy with T12 to L2 anterior reconstruction and stabilization on January 3, 2002. See STR- Medical (October 2002). Though the appellant testified that leg pain began in 2000 and surgery occurred in January 2001, the record clearly establishes that his recollection of events is not credible as the initial July 2001 sick call and subsequent treatment, to include surgery and surgical follow-up for continued pain, establish a different timeline. Therefore, the appellant’s history of onset of symptoms is not credible. Caluza v. Brown, 7 Vet. App. 498 (1995). As the appellant’s administrative discharge was predicated on an act of moral turpitude (commission of the serious offense of indecent act upon a child under 16), and there is no indication that the appellant has requested a character of discharge upgrade, his discharge characterized as “Other than Honorable” for the time period from March 9, 2001, through October 14, 2003, inclusive of the date of his back surgery, is a bar to VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. § 3.1, 3.12, 3.13. Therefore, as a matter of law, the claim is denied as to this period of service. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has considered whether entitlement to service connection for LUE and LLE disability is warranted based on his prior honorable period of service. A VA administrative decision reflects that the appellant’s period of service from August 19, 1997 to March 8, 2001 is considered honorable for VA purposes. As an initial matter, it is noted that the presence of a current disability is debatable. A December 2019 VA examination reflects that the appellant does not have a peripheral nerve condition or peripheral neuropathy. However, the appellant reports diminished sensation of the LUE and LLE that impacts his ability to work. See C&P (December 2019) (for example: “The Veteran is a forklift driver and states that the symptoms have not impacted his current job. He reports difficulty with heavy lifting, climbing, prolonged standing and prolonged walking due to the symptoms.). As such, as explained below, the Board finds that, to the extent that the appellant has a current disability, the weight of the evidence is against his claims of service connection for LUE and LLE disability. Stated differently, the Board finds that, the preponderance of the evidence is against finding that the appellant has LUE and/or LLE disability that began in or is otherwise related to his honorable period of service. Indeed, competent, credible evidence has not been presented showing that a LUE or LLE disability had its onset in or is otherwise etiologically related to injury or disease associated with his honorable period of active service (August 1994 to March 2001). 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. First, STRs for the appellant’s period of honorable service from August 1994 to March 2001 reflect no complaints or abnormal pathology of the LUE or LLE. STRs reflect that he visited sick call on July 9, 2001, during his Other Than Honorable period of service, VA purposes dishonorable, to report a four-month history of back pain, which places onset of symptoms outside his honorable period of service. See STR (October 2002). Second, the appellant’s reports of an in-service injury or disease underlying the onset of LUE/LLE disability is not credible. Also, to the extent that he reports onset of symptoms during his honorable period of service, he is not credible. He is note credible because his reports are inconsistent with his STRs and documented medical history. Further, he is not competent to report that he had a bone chip of the back during an honorable period of service that causes his LUE and/or LLE condition as (1) the presence of a “bone chip” is simply not susceptible to lay observation, (2) this report is not consistent with the STRs, and (3) he lacks the requisite medical expertise to assess whether he had a bone chip present. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the appellant’s statements have no probative value. Third, a December 2019 VA medical opinion (VAMO) reflects that it is less likely than not that the Veteran has LUE or LLE disability which was incurred in service from August 1997 to March 2001 or related to spine surgery performed in January 2002. The rationale was that the Veteran’s symptoms (subjective reports of LUE/LLE decreased sensation) do not correlate with any specific dermatomal pattern on review of the history or clinical findings, and give that there was normal neurological examination in 2019. Stated differently, the VAMO appears to indicate that the appellant’s subjective symptoms do not align with the presence of a neurological disease as claimed. The VAMO considered the appellant’s theory that he had bone chip of the back or surgery resulted in or caused his subjective LUE decreased sensation. However, the VAMO explained that his theory was not supported by medical principles (“There is no scientific evidence of a direct etiological link between Veteran's lumbar spine condition to include his spine surgery and the reported symptoms involving Left upper extremity. Lumbar spine pathology or the surgery performed for the L1 hemivertebra congenital defect, does not lead to a disability or neuropathy in the Upper extremity.”). The Board assigns greater probative value to the appellant’s STRs, which reflect that he did not have any LUE/LLE injury or abnormal pathology during his honorable period of service. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns more probative value to the December 2019 VA examination and VAMO than the Veteran’s unsubstantiated opinion because they were prepared by a skilled, trained medical professional after review of the claims file and with consideration of the appellant’s theory of entitlement. This evidence is probative insofar as it establishes that there is no objective evidence of abnormal pathology of either the LUE or LLE; and that a bone chip of the back would not cause LUE disability even if present. While the VAMO did not address whether a bone chip of the back during an honorable period of service caused any LLE disability, the Board finds that this is immaterial given that there is no competent, credible evidence that the appellant had a bone chip of the back during a period of honorable service. Thus, remand to address such would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, on balance, the criteria for service connection on a direct basis are not met. To the extent that he seeks service connection secondary to back disability, the Board notes the appellant is not service connected for his (congenital) back disability, which is the threshold requirement for secondary service connection. See 38 C.F.R. § 3.310. Additionally, VA regulations specifically prohibit service connection for a congenital defect, unless such a defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Therefore, any disability resulting from congenital back disability is not subject to service connection as a matter of law. Accordingly, the appeal is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.E., 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.