Citation Nr: 21068456 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-07 703 DATE: November 10, 2021 ORDER The Veteran's character of discharge for the period from July 3, 1986 to March 4, 1991 constitutes a bar to Department of Veterans Affairs benefits; the appeal is denied. REMANDED Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. On February 2, 1979, the Veteran enlisted for a period of two years; making him eligible for separation on February 1, 1981. He re-enlisted on July 31, 1980 for 6 years making him eligible for separation on February 1, 1987. These periods are considered honorable for VA purposes. 2. The Veteran re-enlisted again on July 3, 1986 for 4 years making him eligible for separation on February 1, 1991. 3. On January 2, 1990, the Veteran re-enlisted for a period of four years making him eligible for separation on January 1, 1994. 4. On July 30, 1990, the Veteran was convicted for driving under the influence of drugs or alcohol. He was sentenced to 2 days of confinement in the county jail; 365 days of confinement, which was suspended for 363 days; 5 years of probation; 5 days of community service; a fine $1,032.00; assigned to diversion program; and restriction of his driver's license for one year. 5. In addition to the civilian conviction, the Veteran was convicted at nonjudicial punishment for unauthorized absence and was convicted at a Special Court Martial for wrongful use of cocaine. 6. The Veteran was discharged on March 11, 1991 because of the civilian offense of driving under the influence and cocaine use which occurred May 6, 1990. 7. During his period of service, the Veteran's in-service misconduct was willful and persistent and did not consist of mere minor offenses offset by otherwise honest, faithful, and meritorious service. 8. There has been no removal of any bar to VA benefits via an upgrade to the Veteran's character of discharge or evidence showing that the Veteran was insane at the time of his offense. CONCLUSION OF LAW The character of the Veteran's period of service from July 3, 1986 to March 4, 1991 is a bar to VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 1972 to November 1975, February 1979 to July 1986, and July 1986 to March 1991. The Veteran received an under other than honorable (OTH) conditions discharge for his final period of service. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2015 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Des Moines, Iowa. In April 2019, the Board remanded the appeal for further development. 1. Whether the Veteran's character of discharge for the period of service from July 3, 1986 to March 4, 1991 is a bar to the receipt of VA compensation benefits for disabilities incurred during that period of service. The Veteran seeks recognition as a Veteran for VA purposes based on his period of service from July 3, 1986 to March 4, 1991. Specifically, he argues that he had re-enlisted on January 2, 1990, and therefore the period from July 3, 1986 to January 2, 1990, should be considered honorable for VA purposes and, therefore, he should be entitled to VA benefits for this period of service. The Veteran also contends that he had PTSD which caused or contributed to his misconduct. Relevant Law 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 a veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). "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). The term "discharge or release" includes "the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable." 38 U.S.C. § 101(18). Conditional Discharge A discharge to reenlist is considered a conditional discharge if it was issued during one of the following periods: (1) World War I; prior to November 11, 1918; (2) World War II, the Korean conflict or the Vietnam era; or (3) Peacetime service; prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13 (a). 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). Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.13(c). Character of Discharge VA benefits are not payable unless the period of service upon which the claim was based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as dishonorable by the service department is binding on VA as to character of discharge. 38. C.F.R. § 3.12(a). 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 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); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant's discharge classification, and the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994), A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars 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 periods of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of discharge other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). As to the regulatory bars, 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. The Board recognizes that the term "moral turpitude" is not defined in 38 C.F.R. § 3.12(d). Black's Law Dictionary offers two definitions for moral turpitude. The first defines the term as "conduct that is contrary to justice, honesty, or morality." The second, which Black's states is applicable to military law, simply defines moral turpitude as "any conduct for which the applicable punishment is a dishonorable discharge or confinement not less than one year." Black's Law Dictionary (8th ed. 2004). It is also noteworthy that 38 C.F.R. § 3.12(d)(3) specifically states that felonies will generally be considered an offense involving moral turpitude. Additionally, a discharge or release because of willful and persistent misconduct is also considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. However, offenses that would interfere with the appellant's military duties, and preclude their performance are not minor. Stringham v. Brown, 8 Vet. App. 445 (1995); Cropper v. Brown, 6 Vet. App. 450 (1991). An act constitutes willful misconduct when 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 one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). Specifically, pursuant to 38 U.S.C. § 5303(b), "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated." 38 U.S.C. § 5303(b). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, 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). When a rating agency is concerned with determining whether a veteran was insane at the time when he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply the definition in 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). Mental illness is not identical to "insanity." Beck v. West, 13 Vet. App. 535, 539 (2000). The U.S. Court of Appeals for Veterans Claims (Court) has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the Veteran was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that "a determination of whether a person is insane is, in effect, a determination of whether the person's actions were intentional, and, thus, the result of willful misconduct." Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a Veteran suffered from insanity due to disease or that he or she did not know or understand the nature or consequences of his or her acts, or that what he or she was doing was wrong. Id. Significantly, the burden is on the Appellant to submit competent medical evidence that the Veteran was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In May 1997, VA General Counsel discussed the intended parameters of the types of behavior, which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his or her normal method of behavior could be best resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran's period of active service from July 3, 1986 to March 4, 1991 has been held to be under dishonorable conditions. The Veteran's last DD 214 issued on March 4, 1991 shows a characterization of service as "under other than honorable conditions," due to misconduct and conviction by civilian authorities. The Veteran's military personnel records indicate that he enlisted on February 2, 1979 for two years; making him eligible for separation on February 1, 1981. He re-enlisted on July 31, 1980 for 6 years making him eligible for separation on February 1, 1987; he re-enlisted again on July 30, 1986 for 4 years making him eligible for separation on February 1, 1991; and finally, he re-enlisted on January 2, 1990 and was subsequently discharged on March 11, 1991 because of misconduct which occurred May 6, 1990. The service separation form shows that the Veteran was discharged on March 11, 1991, with an OTH discharge due to misconduct resulting in conviction by civil authorities. The Veteran's service separation form includes a separation code of HKB, which is the discharge code for civilian court conviction. Review of the military personnel records shows instances of misconduct: In May 1990, the Veteran was charged and convicted in civilian court for driving under the influence of drugs or alcohol in violation of California Penal Code, 23152(A). The court sentenced him to 2 days of confinement in the county jail; 365 days of confinement, which was suspended for 363 days; 5 years of probation; 5 days of community service; a fine $1,032.00; assigned to diversion program; and restriction of his driver's license for one year. The Veteran did not appeal the conviction. In September 1990, the Veteran was convicted at Summary Court Martial for authorized absence, in violation of Article 86, Uniform Code of Military Justice (UCMJ) for unauthorized absence, and wrongful use of cocaine, in violation of Article 112a, UCMJ. He was sentenced to confinement at hard labor for 60 days, forfeiture of $641.00 per month for two months, and reduction to the rank of E3. In January 1991, the Veteran was convicted at nonjudicial punishment for authorized absence, in violation of Article 86, UCMJ. He was sentenced to forfeiture of $100.00 per month for one month. In February 1991, the command initiated administrative separation actions against the Veteran for misconduct due to civilian conviction and drug use. In February 1991, the Veteran did not object to the adverse discharge, and waived all rights to present evidence and argument to an administrative separation board, thereby accepting no less than an undesirable discharge. In February 1991, the Veteran's General Court Martial Convening Authority approved the administrative separation and ordered that the Veteran be discharged with an undesirable characterization of service, effective March 4, 1991. In September 2017, the Veteran sought a discharge upgrade from the Department of the Navy Discharge Review Board (NDRB) or Board of Correction of Naval Records (NBCNR). The NBCNR denied the Veteran's request for a discharge upgrade. In March 2019, the Board of Correction of Naval Records denied the Veteran's request for reconsideration of the prior NBCNR decision. Analysis Period of Service The Veteran's period of active service from July 3, 1986 to March 4, 1991 has been held to be under dishonorable conditions. The Veteran's last DD 214 issued on March 4, 1991 shows a characterization of service as "under other than honorable conditions," due to misconduct and conviction by civilian authorities. The Veteran's military personnel records indicate that he enlisted on February 2, 1979 for two years; making him eligible for separation on February 1, 1981. He re-enlisted on July 31, 1980 for 6 years making him eligible for separation on February 1, 1987; he re-enlisted again on July 30, 1986 for 4 years making him eligible for separation on February 1, 1991; and finally, he re-enlisted on January 2, 1990 and was subsequently discharged on March 11, 1991 because of misconduct which occurred May 6, 1990. Based on these facts, the Board finds that the Veteran's discharge was conditional and the exception in 38 C.F.R. § 3.13(c) does not apply because he did not serve the period he was obligated to serve. Here, the Veteran re-enlisted on July 3, 1986 for a period of four years, with an anticipated discharge on July 2, 1990. However, he engaged in misconduct in May 1990, prior to the completion of the obligated period of service. Hence, the Board finds that the Veteran's entire period of service from July 3, 1986 to March 4, 1991 is considered to be a single period of service. Since the Veteran would have been released from service on February 1, 1991, but for the fact of his intervening reenlistment on January 3, 1990 for a period of four years, to expire on July 2, 1994, and would not have been eligible for a discharge or release under conditions other than dishonorable due to his misconduct, the entire period of service from July 30, 1986 to March 4, 1991 is considered dishonorable for VA purposes. Character of Discharge In this case, the question at hand is whether the Veteran had engaged in willful and persistent misconduct during service. Turning to an analysis of the evidence, the weight of the evidence otherwise supports a finding that the Veteran's discharge occurred as the result of willful and persistent misconduct. The Veteran's command attempted numerous rehabilitative efforts to assist the Veteran in dealing with his misconduct, to include counseling and nonjudicial punishment. The rehabilitative efforts failed and the Veteran, despite being counselled on the possible adverse consequences of continued misconduct, continued to engage in misconduct, to include misconduct while serving parole for driving under the influence of illegal drugs. The Veteran's repeated violations of law, to include civilian criminal law and the UCMJ, is consistent with a finding that the Veteran's misconduct was both willful and persistent. At no time has he expressed a lack of understanding regarding the UCMJ or the nonjudicial and judicial proceedings against him. He also continued engaging in misconduct despite knowing that those actions could result in discharge from service and after receiving counseling. The Veteran was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with his service duties and resulted in his separation from service for misconduct. The Veteran has not argued that his in-service misconduct was neither willful nor persistent. The definition of willful misconduct is an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences. 38 C.F.R. § 3.1(n). Rather, in a February 2016 Notice of Disagreement and a December 2020 correspondence to the ADRB, the Veteran asserted that he has PTSD which contributed to his misconduct, which should also be considered minor, and that his service should be considered otherwise honest, faithful and meritorious. Despite the Veteran's contentions, the nature of the underlying in-service misconduct is determinative to the issue on appeal. The Veteran's misconduct occurred over a six month period, and he continued to engage in misconduct despite being disciplined on several occasions. The Board finds that the Veteran's conduct, which shows the Veteran using illegal drugs on several occasions and driving under the influence of drugs occurred despite the illegality of such behavior. The Board also finds, as did the Veteran's chain of command, that the Veteran's in-service misconduct was not minor, but it instead fundamentally interfered with his service duties. The Board acknowledges that the isolated and infrequent use of drugs itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. In this case, the Veteran used drugs on two occasions, which could qualify as isolated and infrequent use of drugs. However, the Veteran did not use drugs by "itself." Rather, while under the influence, the Veteran also engaged in driving under the influence which is punishable with one year in prison. Therefore, his actions, to include illegal drug use, AWOL, and driving under the influence of cocaine constitutes willful and persistent misconduct. The Board notes that the Veteran indicated being briefed on the Navy's zero tolerance drug policy upon enlistment and reenlistment. The Board also notes that Article 112a of the Uniform Code of Military Justice indicates that the maximum punishment for the illegal possession and use of cocaine is dishonorable discharge, forfeiture of all pay and allowances, and imprisonment for up to five years. This indicates the military's view of the severity of the Veteran's misconduct. Therefore, the Veteran's discharge is dishonorable. 38 C.F.R. § 3.12(d)(4). However, the Board will address the potential defense to this statutory bar on the basis of insanity. See 38 C.F.R. § 3.12(b). The Board notes that 38 C.F.R. § 3.12(b) provides, essentially, that if an Appellant was insane at the time of committing an offense causing discharge under that regulation (as relevant here, based on willful and persistent misconduct), this would not be a bar to VA benefits. Insanity has a specific definition for VA purposes, as outlined in 38 C.F.R. § 3.354. This definition provides that an insane person is one who 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. See also Zang v. Brown, 8 Vet. App. 246 (1995) (holding that the phrase "due to disease" applies to all three circumstances in 38 C.F.R. § 3.354 (a)). The Veteran has not presented any argument that any of the three circumstances in the regulation were applicable to the Veteran at the time of his misconduct and the Board finds that the evidence does not otherwise indicate that any of the three circumstances are applicable. The remaining evidence of record does not suggest that the Veteran was insane as defined by VA regulation. The Army Board of Correction of Military Records Advisory Opinion, authored by a licensed clinical psychologist, noted that evidence reflects that the Veteran did not have a mental health condition, to include PTSD, in service. As such, the Board finds that there is no evidence that the Veteran met the definition of "insanity," under 38 C.F.R. § 3.12(b), during the period of his misconduct. Based on the foregoing, the Board finds that the Veteran's discharge from service on March 4, 1991, was issued due to willful and persistent misconduct. Therefore, character of discharge from the Veteran's period of service is a bar to VA compensation benefits, as the discharge was the result of willful and persistent misconduct under 38 C.F.R. § 3.12(d), 3.13, 3.354. The Board finds that the preponderance of the evidence supports those findings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In sum, the Board finds that the Veteran was discharged under other than honorable conditions as a result of willful and persistent misconduct. As such, the Board concludes that VA benefits are not payable based on the Veteran's period of service from July 3, 1986 to March 4, 1991. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. In reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. The Veteran contends that he has a lower back disability with an onset while service on the USS America (see VA Form 21-4138). The Veteran's entrance examination and Report of Medical History in May 1971 reflect that he reported occasional low back pain with squatting. This evidence raises the possibility of whether the Veteran had a pre-existing condition which was aggravated by his military service, thereby possibly allowing for service connection. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding a direct service connection claim, the examiner should discuss whether it is at least as likely as not (i.e. 50 percent or greater) that any currently diagnosed back condition is related to his periods of honorable service from January 1972 to November 1975, and from February 1979 to July 1986. Any opinion submitted should include sufficient rationale. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regarding a pre-existing disability, the examiner should discuss whether the evidence of record clearly and unmistakably show the Veteran had a lower back disability prior to beginning his honorable periods of active-duty service. If so, and a finding that there is clear and unmistakable pre-existence is proffered, then the examiner must answer whether the evidence clearly and unmistakably shows that the pre-existing back condition(s) was not aggravated (i.e., permanently worsened) during or by the Veteran's service (meaning exacerbated beyond the condition's natural progression). Aggravation is defined for legal purposes as a worsening of the underlying condition versus a mere temporary or intermittent flare-up of symptoms. The examiner is reminded that the evidentiary standard of clear and unmistakable evidence means the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). When considering the issue of aggravation, the examiner must only consider the periods of service from January 1972 to November 1975, February 1979 to July 1986. The examiner must not consider the period of service from July 3, 1986 to March 4, 1991. The matters are REMANDED for the following action: 1. A medical opinion should be obtained for the service connection claim of the low back. If the VA examiner determines that it is necessary, schedule the Veteran for a VA examination. After thoroughly reviewing the claims file, the examiner is asked to address the following: Is the claimed back disability at least as likely as not related to service, including his claims of in-service injuries? Regarding the indicia of a pre-existing back condition, noted on entrance in 1971, the examiner should identify all back conditions or injuries and discuss the following: (a) Does the evidence of record clearly and unmistakably show the Veteran had a back disability prior to the start of his active-duty service? (b) If the answer to subpart (a) is "yes" to clear and unmistakable pre-existence, then does the evidence also clearly and unmistakably show that the pre-existing back condition(s) was not aggravated (i.e., permanently worsened) during or by the Veteran's periods of honorable service, meaning exacerbated beyond the condition's natural progression? Aggravation is defined for legal purposes as a worsening of the underlying condition versus a mere temporary or intermittent flare-up of symptoms. The examiner is reminded that the evidentiary standard of clear and unmistakable evidence means the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). (c) If the answer to subpart (a) conversely is "no," then is it at least as likely as not (i.e. 50 percent or greater) that such a currently diagnosed back injury is related to his service? The basis for each opinion is to be fully explained with complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.