Citation Nr: 22014104 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-43 363 DATE: March 11, 2022 REMANDED Whether the character of the appellant's discharge from service for the period from May 28, 1999 to December 28, 2001 (exclusive of a period of active duty for training (ACDUTRA) from August 24, 1999 to January 14, 2000) constitutes a bar to the payment of VA benefits is remanded. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for tinnitus is remanded. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral dermatitis on the hands (claimed as chemical burns to the hands) is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant served in the Army National Guard (ARNG) from May 22, 1999 to December 28, 2001, to include a period of ACDUTRA from August 24, 1999 to January 14, 2000. The agency of original jurisdiction (AOJ) has determined that the period of ACDUTRA from August 24, 1999 to January 14, 2000 is honorable for VA purposes. The appellant received an under other than honorable (OTH) conditions discharge for the period from January 15, 2000 to December 28, 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines. In August 2021, the Veteran and his girlfriend testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Whether the character of the appellant's discharge from service for the period from May 28, 1999 to December 28, 2001 (exclusive of a period of ACDUTRA from August 24, 1999 to January 14, 2000) constitutes a bar to the payment of VA benefits is remanded. The Board initially notes that a National Guard Bureau Form 22 (Report of Separation and Record of Service) from the Washington State ARNG indicates that the appellant received a discharge "under other than honorable conditions" (OTH) in December 2001. The cited reason was unsatisfactory participation. The appellant's current service connection claims are all predicated on incidents that occurred during his service in the ARNG after January 14, 2000. For example, he is seeking service connection for a June 2000 injury to his hands, which occurred during a period of ACDUTRA. In that regard, his service records contain a line of duty investigation which indicates that he was on ACDUTRA from June 10, 2000 to June 24, 2000. Presently, it is not entirely clear whether any part of the period of ARNG service from May 22, 1999 to December 28, 2001 (exclusive of the period of ACDUTRA from August 24, 1999 to January 14, 2000) can properly be considered honorable active service for VA adjudication purposes. Correspondence in the appellant's service personnel records reflects that he was not reduced in grade for unsatisfactory participation until April 27, 2001. In a February 2017 deferred rating decision, the AOJ noted that the appellant's dates of service involved two overlapping periods, one of which had been determined to be honorable, and the other was OTH per the service department. The RO initiated action to verify all periods of service, and if there was a period of service with a characterization of OTH, to render a determination as to whether the service was honorable for VA purposes. Although additional development was undertaken pursuant to the deferred rating decision, the record does not reflect that all of the appellant's periods of service have been verified. Nor was a formal determination entered as to whether any part of the period of ARNG service from May 22, 1999 to December 28, 2001 (exclusive of the period of ACDUTRA from August 24, 1999 to January 14, 2000) could be considered honorable active service for VA adjudication purposes. Under the circumstances, the Board finds that additional development should be completed prior to final adjudication. Specifically, efforts should be made to verify all of the appellant's periods of ACDUTRA and INACDUTRA service, as set out in the deferred rating decision. Thereafter, an administrative determination should be entered on the record as to whether any part of the period of ARNG service from May 22, 1999 to December 28, 2001 (exclusive of the period of ACDUTRA from August 24, 1999 to January 14, 2000) can be considered honorable active service for VA adjudication purposes. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for PTSD is remanded. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for tinnitus is remanded. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral dermatitis on the hands (claimed as chemical burns to the hands) is remanded. 5. Entitlement to service connection for a low back disability is remanded. As noted above, resolution of the appellant's claims for service connection rests, in part, of whether any portion of his service after January 14, 2000 can be considered honorable active service for VA adjudication purposes. That is to say, the service connection claims are inextricably intertwined with the character of discharge issue. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). As such, the Board will remand the service connection claims as well. These matters are REMANDED for the following action: 1. Ask the appellant to identify, and provide appropriate releases for, any non-VA medical care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and his representative should be notified. 2. Undertake all appropriate development to verify the appellant's periods of ACDUTRA and INACDUTRA service, as well as the character of his discharge(s) therefrom, if any. Any records specifying the appellant's dates of ACDUTRA and INACDUTRA, to include any Statements of Service or special orders indicating that the appellant was assigned to any other status other than reserve status, should be procured. As part of the requested development, the State custodian of records for the appellant's ARNG unit should be contacted for purposes of obtaining the requested information, as well as for purposes of obtaining any additional personnel records that may be in the custodian's possession, particularly as those records pertain to the facts and circumstances underlying the Veteran's OTH discharge in December 2001. A request should also be made for the appellant's Military Master Pay Account via the State. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice should be provided to the appellant. 3. After the forgoing evidence has been gathered to the extent possible, enter a formal administrative determination on the record as to whether any part of the period of ARNG service from May 22, 1999 to December 28, 2001 (exclusive of the period of ACDUTRA from August 24, 1999 to January 14, 2000) can be considered honorable active service for VA adjudication purposes. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER 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.