Citation Nr: 21013280 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-30 147 DATE: March 9, 2021 REMANDED Whether the character of the Appellant’s discharge is a bar to the receipt of VA compensation and pension benefits, exclusive of VA health care benefits under Chapter 17 of Title 18 of the United States Code, is remanded. Entitlement to service connection, for compensation purposes, for painful scar, left thumb, is remanded. Entitlement to service connection, for compensation purposes, for residuals, fracture of left fifth finger (pinky finger) is remanded. REASONS FOR REMAND The Appellant served on active duty from November 1992 to October 1995. The Appellant was discharged for misconduct and given an under Other Than Honorable (OTH) conditions discharge. This appeal comes before the Board of Veterans’ Appeals (Board) from December 2016 and March 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Oakland, California (Agency of Original Jurisdiction (AOJ)). In November 2019, the Board remanded the appeal to the AOJ for further development. In September 2019, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. 1. Whether the character of the Appellant’s discharge is a bar to the receipt of VA compensation and pension benefits, exclusive of VA health care benefits under Chapter 17 of Title 18 of the United States Code, is remanded. Unfortunately, this case must be remanded to the AOJ for further development and to provide the Appellant an opportunity to submit additional evidence with regard to appeals/claims filed before military service department review boards challenging the type or characterization of his October 1995 undesirable discharge. In a December 2016 administrative decision, the AOJ determined that the Appellant’s character of discharge was a bar to VA benefits, to include compensation benefits, based on the appellant’s in-service misconduct. In a January 2017 claim, the Appellant sought service connection for painful scar, left thumb, and residuals of fracture of left fifth finger. In a March 2017 rating decision, the AOJ granted service connection for painful scar, left thumb, and residuals of fracture of left fifth finger for treatment purposes only, based on his character of discharge. In his April 2017 Notice of Disagreement, the appellant sought service connection and disability ratings of 10 percent for painful scar, left thumb, and residuals of fracture of left fifth finger. In a January 2017 claim, the Appellant sought service connection for PTSD. In a December 2016 rating decision, the AOJ denied service connection for PTSD for treatment purposes only, based on his character of discharge. In his April 2017 Notice of Disagreement, the Appellant sought service connection and a disability rating of 10 percent for his claimed PTSD. Following the AOJs decisions, the record reflects that the Appellant prepared a DD Form 149 to initiate a claim with the Navy Board of Corrections of Military Records (NBCMR). He submitted this form in February 2019. This form indicates that he believed his military discharge should be upgraded due to his subsequently diagnosed PTSD. In a December 2019 correspondence, the NBCNR acknowledged receipt of the appellant’s application. In its November 2020 remand, the Board found that the appellant’s submission to the NBCMR could materially impact the adjudication of the character of discharge, as well as the compensation claims. As such, the Board found that a remand was necessary to determine whether the NBCNR has received and/or made a decision on the Appellant’s request for an upgrade to his discharge. The Board directed the AOJ to request information regarding the Appellant’s application for a discharge upgrade from the NBCNR. In September 2020, the AOJ requested information regarding the Appellant’s application for a discharge upgrade from the NBCNR. However, in an October 2020 correspondence, the NBCNR notified VA that it could not release the requested information to third parties. In October 2020, the AOJ requested information regarding the Appellant’s application for a discharge upgrade from the NBCNR but did not receive a response. In a January 2021 correspondence, the AOJ notified the Appellant that the NBCNR records were unavailable. Specifically, the AOJ notified the Appellant that We requested your records in possession of the Board for Correction of Naval Records (BCNR). We have determined that these records cannot be located and therefore are unavailable for review. All efforts to obtain the needed information have been exhausted, and based on these facts, we have determined that further attempts to obtain the records would be futile. Your claim file contains documentation of the written and telephonic efforts we made to attempt to obtain these records. The AOJ requested that the appellant submit “any available copies of your responses and findings from the Board for Correction of Naval Records (BCNR) (and) any other relevant evidence or information that you think will support your claim.” The Board recognizes the two attempts by the AOJ to obtain the appellant’s NBCNR records. However, the Board finds that these attempts have been inadequate. Upon remand, further attempts should be made to acquire this evidence. The Board further notes that the Appellant recently informed VA that his upgrade decision was still pending. Additionally, the Board finds that the Appellant should be afforded another opportunity to submit any correspondence from the NBCNR, to include any discharge findings or determinations, and be provided an appropriate time to submit such evidence. While the Board regrets the delay necessitated by remand, further appellate action by VA on this claim must be stayed in light of the Appellant’s decision to pursue a claim before the NBCNR, and the lack of evidence of a formal determination by the NBCNR. Duro, supra; see also 38U.S.C. §§5103(a), 7104(a) (decisions of the Board must be based on all of the evidence that is known to be available). 2. Entitlement to service connection, for compensation purposes, for painful scar, left thumb, is remanded. 3. Entitlement to service connection, for compensation purposes, for residuals, fracture of left fifth finger (pinky finger) is remanded. Finally, because a decision on the remanded issue of whether the character of the Appellant’s discharge is a bar to the receipt of VA compensation and pension benefits, exclusive of VA health care benefits under Chapter 17 of Title 18 of the United States Code, could significantly impact a decision on the issues of entitlement to service connection, for compensation purposes, for painful scar, left thumb, and residuals of fracture of left fifth finger, the issues are inextricably intertwined. A remand of these claims is required. The matters are REMANDED for the following action: 1. Inform the Appellant that he may request copies of his NBCNR application and related documents from the NBCNR. Request that the Appellant provide VA a copy of his application to the NBCNR and any findings pertaining to the application for discharge upgrade. Alternatively, provide the Veteran the appropriate form to authorize release of the NBCNR application materials to VA. 2. Contact the NBCNR and request complete, legible copies of any final decisions or determinations pertaining to an application and/or appeal filed by the appellant with the NBCNR pertaining to the classification of his release/discharge from the Navy. Copies of any documents received from NBCNR should be associated with the claims folder. (continued on the next page) 3. After undertaking any further development deemed warranted, readjudicate the appellant’s claims. If the claims remain denied, furnish the appellant (and his representative) a supplemental statement of the case (SSOC) and afford him appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.