Citation Nr: 21072996 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-08 195 DATE: December 7, 2021 ORDER New and material evidence having been presented, the claim of entitlement to payment of VA benefits is reopened. The character of the Appellant's discharge is not a bar to the receipt of Department of Veterans Affairs (VA) benefits. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran's first claim for VA benefits was denied in an April 1972 administrative decision that was not appealed; no further evidence relevant to the Veteran's status as a veteran was submitted for a period of one year following the April 1972 administrative decision. 2. Evidence relevant to an element of the previously denied claim was received since the April 1972 administrative decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim. 3. The Appellant's discharge for the period from May 1969 to January 1972 was initially characterized as under other than honorable conditions. 4. In July 2018, the Air Force Board for Correction of Military Records granted an upgrade of the Appellant's discharge to general, under honorable conditions. CONCLUSIONS OF LAW 1. New and material evidence has been received since the April 1972 denial became final; the criteria for reopening the previously denied claim for VA benefits have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.203, 20.1103. 2. The character of the Appellant's discharge for the period of active duty service from May 1969 to January 1972 is not a bar to the receipt of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served on active duty with the United States Air Force from May 1969 to January 1972, and the service was initially characterized as under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits. NEW AND MATERIAL EVIDENCE Whether new and material evidence has been received to reopen a claim for entitlement to payment of VA benefits A claim that has been finally adjudicated may only be reopened by submitting new and material evidence. 38 U.S.C. § 5108; see also D'Amico v. West, 209 F.3d 1322 (2000) (applying the new and material evidence standard to claims previously denied on the basis of veteran status and character of discharge). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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. 38 C.F.R. § 3.156(a). The Appellant initially filed a claim for disability benefits for a back injury in February 1972. This claim was denied based on a finding that the Appellant's other than honorable discharge was dishonorable for VA purposes. The Appellant received notice of this decision in April 1972, and did not submit any new or material evidence or a notice of disagreement in the year following the notification. The Appellant filed the current claim on appeal in May 2015. In May 2019, the Appellant submitted a July 2018 decision by the Air Force Board for Correction of Military Records (AFBCMR) regarding the character of the Appellant's discharge. The Board finds the new AFBCMR evidence to be material, as it goes directly to the element of status as a veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a veteran is one of five elements of a claim for service connection benefits). Therefore, the issue of whether the Appellant's discharge is a bar to the receipt of VA benefits is reopened. CHARACTER OF DISCHARGE Whether the character of the Appellant's discharge constitutes a bar to the payment of VA benefits An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under 10 U.S.C. § 1552 is final and conclusive on VA. 38 C.F.R. § 3.12(e). The action of the board sets aside any prior statutory or regulatory bar to benefits. Id. In this case, in July 2018, the AFBCMR, established under the authority of 10 U.S.C. § 1552, upgraded the character of the Veteran's discharge for the period of service at issue to a general discharge under honorable conditions. This action by the AFBCMR removes the bar to receiving VA benefits based on such service. As a result, the appeal concerning whether the Veteran's character of discharge for his period of service from May 1969 to January 1972 is a bar to receipt of VA benefits is granted. As discussed below, the underlying claim for service connection for a back disability is remanded to the AOJ for development and adjudication. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. The Veteran submitted a claim for disability compensation received by VA in May 2015, requesting entitlement to service connection for a back disability. In a June 2015 rating decision, the claim was denied based on a lack of qualifying service. The Veteran timely appealed the issue of whether his character of discharge from service was a bar to the receipt of VA compensation benefits. As discussed above, the Board found that a bar to VA compensation benefits no longer exists, on account of the upgrade of the Appellant's character of discharge by the AFBCMR. In light of this finding, and given that the agency of original jurisdiction (AOJ) has not yet addressed the Veteran's claim for service connection for a back disability on the merits, this issue is remanded to the AOJ for appropriate action. The matter is REMANDED for the following action: Develop and adjudicate the issue of entitlement to service connection for a back disability. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.