Citation Nr: 21068465 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-35 395 DATE: November 10, 2021 ORDER The issue of whether the character of the Veteran's discharge from service bars entitlement to Department of Veterans Affairs (VA) compensation benefits is dismissed. FINDING OF FACT The Veteran's claim with respect to the character of his discharge from service has been granted; thus, there remains no case or controversy before the Board regarding this claim. CONCLUSION OF LAW The criteria for dismissal of the issue of whether the character of the Veteran's discharge from service bars entitlement to VA compensation benefits have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from July 1966 to May 1969. He received a dishonorable discharge under conditions other than honorable. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2018 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his November 2019 VA Form 9, Appeal to the Board, the Veteran requested a video-conference hearing at the local RO office. However, in a November 2020 brief from the Veteran's attorney, he withdrew that hearing request. Accordingly, the Board considers his request for a hearing to be withdrawn and will proceed with the appeal. See 38 C.F.R. § 20.704 (d), (e). In November 2020, after certification of the appeal, the Veteran's attorney submitted records pertaining to the character of the Veteran's discharge from service and expressly waived RO consideration of this evidence in the first instance in the November 2020 brief. See 38 C.F.R. §§ 20.800; 20.1304(c). See also 38 U.S.C. § 7105(e) (only providing for waiver of initial review by the Board "if the claimant or the claimant's representative submits evidence"). The Veteran initially filed a claim for benefits in January 2016, and he sought service connection for posttraumatic stress disorder (PTSD), sleep apnea secondary to PTSD, arthritis in the hands secondary to PTSD, bilateral wrist, bilateral shoulder, bilateral knee, neck, and low back disabilities, bilateral hearing loss, tinnitus, shrapnel residuals in the right hip, shrapnel right hip scar, shrapnel right toe residual secondary to foot scars, broken right index and little fingers, and bilateral hearing loss and tinnitus. He also claimed Parkinson's disease, enlarged prostate, diabetes mellitus type 2, peripheral neuropathy of the upper and lower extremities, each claimed as due to Agent Orange exposure, and ingrown big toenails of the bilateral feet, and a claim for total disability rating for compensation based on individual unemployability. In January 2018, the RO granted service connection for treatment purposes only under 38 U.S.C. Chapter 17 for the following disabilities: PTSD, right hip shrapnel injury, right foot shrapnel injury, scars status post shrapnel injury of right lower extremity, tinnitus, bilateral hearing loss, tinea pedis and onychomycosis, and arthritis of bilateral hands. The remaining claims were denied. A January 23, 2018 VA notification letter determined that service from July 1966 to May 1969 was not honorable for VA compensation purposes and therefore he was only entitled to benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a) for any disability determined to be service-connected for active service from July 1966 through May 1969. In November 2018, the Veteran's representative at that time filed a notice of disagreement as to the January 23, 2018, letter regarding receipt of compensation due to character of discharge. In the November 2019 VA Form 9, the Veteran contended that he was discharged from service under other than honorable conditions because he was in combat during service and injured by mortar explosion and was unable to continue his military duties. In the November 2020 correspondence from the Veteran's attorney, he reported that in July 2020, the Army Board for Correction of Military Records updated the Veteran's characterization of service to under honorable conditions. He submitted a copy of the revised DD Form 214 reflecting that the Veteran's service had been upgraded to discharge under honorable conditions (General). It also noted the Veteran was awarded several service awards, including the Purple Heart. The Veteran's attorney also submitted a copy of a July 2020 Army Board for Correction of Military Records determination that upgraded the Veteran's characterization of service to under honorable conditions (general). The Veteran's attorney contended that because the Veteran's service was upgraded to discharge under honorable conditions, service connection for PTSD, right foot shrapnel injury, right thigh shrapnel injury, and right thigh scar effective from January 26, 2016, should be granted. Thus, the issue of the character of the Veteran's discharge has been resolved in his favor, and the Army Board for Correction of Military Records' grant reflects a full grant of benefits sought on appeal. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Here, as the Veteran's period of service was deemed honorable, there is no remaining allegation of error of fact or law in this claim. 38 U.S.C. §§ 7104, 7105(d) (5); 38 C.F.R. §§ 19.7, 20.101, 20.1405(g). Accordingly, the Board concludes that there is no case or controversy within the Board's jurisdiction and the Board will dismiss this matter as a matter of law. The Board notes that the issues of entitlement to service connection for PTSD, right foot shrapnel injury, right thigh shrapnel injury, and right thigh scar effective from January 26, 2016, are not issues currently before the Board within the current appeal. However, it appears the RO is unaware of the July 2020 Army Board for Correction of Military Records' determination that upgraded the Veteran's characterization of service to discharged under honorable conditions (general). Therefore, the RO is advised to review the July 2020 Army Board for Correction of Military Records and revised Form DD-214 that reflects the Veteran's discharge under honorable conditions and conduct any necessary development actions and if appropriate, adjudicate the underlying claims for service connection stemming from the January 2016 claim, which includes PTSD, right foot shrapnel injury, right thigh shrapnel injury, and right thigh scar. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.