Citation Nr: 0001305 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 89-17 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to an effective date prior to September 20, 1984 for the grant of service connection for disability due to wounds received in service. Entitlement to an increased rating for venous insufficiency of the right lower extremity. Entitlement to a rating in excess of 10 percent for arthritis of the right ankle. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARINGS ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Neil Reiter, Counsel INTRODUCTION The veteran has been recognized as having service between February 1964 and March 31, 1976. He served in Vietnam from April 1968 to June 1969, and he is a recipient of the Purple Heart. This case has a long tortuous history. In 1977, the veteran apparently applied for benefits under the loan guaranty program. In an administrative decision in July 1977, the regional office (RO) determined that the veteran had been discharged under other than honorable conditions due to persistent and willful misconduct, and was therefore not entitled to any Department of Veterans Affairs (VA) (then called the Veterans Administration) gratuitous benefits. That determination was based on a review of his service records which showed numerous periods of lost time due to being absent without leave, in a desertion status, or under confinement. His lost time included a period of being absent without leave from July 1, 1970 to March 3, 1976. An initial claim for service connection for disabilities incurred in May 1969 as the result of shell fragment wounds was received by the RO on September 9, 1980. In a letter dated later in September 1980, the RO informed the veteran that a previous determination showed that his discharge from service had been issued under conditions which constituted a bar to gratuitous benefits under the laws administered by the VA. He was informed that his claim for benefits was denied. On October 27, 1981, the veteran submitted another claim for service connection for disabilities received as the result of wounds incurred in May 1969. In an administrative decision in June 1982, the RO determined that the veteran's service between February 3, 1964, and February 2, 1967, had been terminated by a discharge under honorable conditions, but that the veteran's service between February 3, 1967, and March 31, 1976, had been terminated by a discharge under other than honorable conditions. It was determined that his discharge from service in March 1976 was a bar to VA benefits based on the second period of service under the provisions of 38 C.F.R. § 3.12(c)(6). The veteran was advised of this decision, and did not initiate an appeal. On September 20, 1984, the veteran again submitted a claim for service connection for disabilities received in service. In an administrative decision in December 1984, the RO again denied the veteran's claim for compensation benefits on the basis that his second period of service had been terminated by a discharge under other than honorable conditions. The decision affirmed the previous finding that his extensive period of AWOL from July 1970 until March 1976 was a bar to all VA benefits under 38 C.F.R. § 3.12(c)(6), and that there were no compelling circumstances to excuse the absence. The veteran appealed. In a remand decision in December 1986, the Board requested that the regional office obtain additional records, specifically, the veteran's service medical records. The Board requested that the RO review the veteran's claim under 38 C.F.R. § 3.12(c)(6), and specifically consider whether compelling circumstances were present. The Board also specified that the RO review the pertinent criteria on finality relating to prior unappealed decisions. After additional service medical and personnel records were received, the RO, in an administrative decision in August 1987, determined that such new service records and service medical records established a new factual basis and concluded that the appellant's absence without leave between July 1970 and March 1976 was warranted due to compelling circumstances. The regional office determined that the veteran's entire service between 1964 and 1976 was under honorable conditions for VA purposes. In a rating in December 1987, the regional office granted service connection for residuals of a fracture of the right femur, residuals of a shell fragment wound to the abdomen, and residuals of a shell fragment wound to the left thigh, effective from November 2, 1984. In a timely notice of disagreement received in April 1988, the veteran and his representative, among other things, disagreed with the effective date for the grant of service connection for the veteran's disabilities resulting from the wounds received in service. This notice of disagreement indicated that they believed that the grant of service connection for the veteran's service-connected disabilities should have been effective from the date that the veteran originally applied for disability compensation, or September 9, 1980. This issue has been in appellate status since that time, with remands by the Board relating to this issue in January 1991, February 1993, and October 1996. During this appeal, the regional office determined that the effective date for the grant of service connection for the established should be September 20, 1984, and the veteran has continued his appeal relating to this issue. The veteran is currently recognized as service connected for residuals of a fracture of the right femur, evaluated as 30 percent disabling, for residuals of a shell fragment wound to the left thigh, evaluated as 10 percent disabling and for residuals of a shell fragment wound to the abdomen, evaluated as 10 percent disabling. In addition, in a rating action in September 1991, the regional office granted service connection for arthritis of the right ankle, evaluated as zero percent disabling from September 20, 1984. In a rating action in July 1994, the regional office granted service connection for venous insufficiency of the right lower extremity, evaluated as zero percent disabling from September 20, 1984, and for lumbosacral strain and pain, evaluated as 10 percent disabling from September 20, 1984. In November 1994 and again in December 1994, the veteran disagreed with the evaluation assigned for venous insufficiency of the right lower extremity from the date of the grant of service connection in 1984. He also disagreed with the disability ratings for lumbosacral strain, residuals of a fracture of the right femur, and arthritis of the right ankle. In addition, the RO, in a rating in November 1995, awarded service connection for osteomyelitis of the right medial malleus, assigning a 20 percent evaluation from September 30, 1994, a temporary 100 percent evaluation from March 10, 1995, a 20 percent evaluation from May 1, 1995, and a zero percent evaluation from September 25, 1997. A combined 70 percent evaluation was assigned, effective from August 12, 1991, a combined 80 percent evaluation, effective from September 30, 1994, a combined 100 percent evaluation from March 10, 1995, and a combined evaluation of 80 percent from May 1, 1995. Finally, a total compensation rating by reason of individual unemployability was awarded, effective from August 31, 1995. The Board decision in October 1996 denied service connection for hearing loss and tinnitus. The Board remanded the issues of entitlement to an increased rating for residuals of a fracture of the right femur, then evaluated as 30 percent disabling, entitlement to an increased rating for lumbosacral pain and strain, evaluated as 20 percent disabling, entitlement to an increased evaluation for residuals of a shell fragment wound to the left thigh, evaluated as 10 percent disabling, entitlement to an increased rating for shell fragment wound of the abdomen, evaluated as 10 percent disabling, and entitlement to an increased rating for arthritis of the right ankle, evaluated as 10 percent disabling. The Board also remanded the issue of entitlement to an earlier effective date for the award of service- connected disabilities, and entitlement to an increased rating for venous insufficiency. In a letter dated in September 1998, the veteran withdrew from appeal the issues of entitlement to increased ratings for the following five disabilities: Residuals of a fracture of the right femur, lumbosacral pain and strain, residuals of shell fragment wound of the right thigh, residuals of shell fragment wound of the abdomen, and arthritis of the right ankle. As a result, aside from the issue of an increased rating for arthritis of the right ankle which is dealt with below, these issues are no longer appellate issues properly before the Board. In November 1998, the veteran and his wife appeared and testified at a hearing before the Board sitting at Louisville, Kentucky. FINDINGS OF FACT 1. With regard to the issue of entitlement to an effective date prior to September 20, 1984 for the grant of service connection for disabilities residual to his wounds, the regional office has obtained all pertinent evidence necessary for an equitable disposition of the issue. 2. An original claim for service connection for disabilities resulting from shell fragment wounds incurred in service was received from the veteran on September 9, 1980. 3. Later in September 1980, the regional office informed the veteran that he was not entitled to gratuitous VA benefits because of the nature of his discharge from service in March 1976. 4. Another claim for service connection for disabilities resulting from wounds received in service was received from the veteran in October 1981. 5. In an administrative decision in June 1982, the RO found that entitlement to VA benefits for injuries received in service was barred because under 38 C.F.R. § 3.12(c)(6) his discharge from service in March 1976 was not a discharge under honorable conditions. 6. On September 20, 1984, another claim for service connection for disability was received from the veteran. 7. After receiving additional service medical and personnel records, the regional office, in an administrative decision of August 1987, determined that the evidence presented a new factual basis establishing that the veteran's long period of being absent without leave from July 1970 to March 1976 was excusable because of compelling, mitigating circumstances, and that his entire period of service had been terminated under honorable conditions for VA benefit purposes. CONCLUSION OF LAW The effective date for the grant of service connection for disabilities residual to shell fragment wounds is September 9, 1980, the date of the veteran's initial claim, but not earlier. 38 U.S.C.A. §§ 5107, 5108, 5110 (West 1991); 38 C.F.R. §§ 3.12, 3.104, 3.105, 3.157, 3.160, 3.400, 3.360, 20.200-20.202, 20.302. (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend, in essence, that there was clear and unmistakable error in the 1980 and 1982 regional office determinations denying service connection for residuals of injuries received in service. They contend that the regional office in 1980 failed to adjudicate the issue relating to the nature and character of the veteran's discharge according to all pertinent laws and regulations, including the amendments to the 38 C.F.R. § 3.12 that took effect on October 8, 1977, pursuant to Public Law 95-126, as well as those regulations relating to health care benefits. I. Background In 1977, the veteran applied for benefits under the loan guaranty program. The copy of his DD 214 which was then of record indicated that he served in Vietnam from April 8, 1968, to January 9, 1969. This document also showed that he had numerous periods of time lost, including from July 17 to July 30, 1965, August 8, 1965, to December 28, 1965, July 31, 1968, to September 9, 1968, December 8 to December 16, 1968, March 29 and March 30, 1970, April 21, 1970, May 1, 1970, May 4 and 5, 1970, and July 1, 1970, through March 3, 1976. In an administrative decision in July 1977, the regional office determined that the veteran's service was terminated in March 1976 by a discharge under other than honorable conditions. The regional office determined that the veteran showed a pattern of willful and persistent misconduct because of time lost in service, and that the character of his discharge from service precluded his receiving VA benefits. On September 9, 1980, a claim for service connection for disabilities incurred in service, including a shell fragment wound of the right thigh and knee with fracture of the femur, a shell fragment wound to the right abdomen, and a shell fragment wound to the left thigh, was received from the veteran. In a letter in September 1980, the regional office informed the veteran that his application for compensation benefits had been denied, because, as he had previously been notified, his discharge from service in March 1976 was found to have been issued under conditions other than honorable, constituting a bar to VA benefits. In October 1981, another claim for service connection for disabilities due to wounds incurred in service, including the fracture of the right femur, a shrapnel wound to the abdomen, and wounds to the legs, was received from the veteran. At a hearing at the RO in January 1982, the veteran testified about the circumstances relating to his being absent without leave for an extended period of time between 1970 and 1976. The service department reported that the veteran had enlisted on February 3, 1964, that the enlistment period was for a period of three years, that his scheduled date of discharge was February 2, 1967, and that he had reenlisted for a period of six years on April 30, 1965. The service department indicated that the veteran had periods of absence without leave from July 17, 1965, to July 30, 1965, from August 8, 1965, to November 12, 1965, from July 31, 1968, to September 9, 1968, on April 21, 1970, on May 4 and May 5, 1970, and from July 1, 1970, to March 3, 1976. It was indicated that the veteran was in confinement from November 13, 1965, to December 28, 1965, and from December 8, 1968, to December 16, 1968. In an administrative decision in June 1982, the RO determined that the veteran completed his initial period of enlistment from February 3, 1964, to February 2, 1967, under honorable conditions. The RO then determined that his service from February 3, 1967, to March 31, 1976, had been terminated by a discharge that was under conditions other than honorable, as he had been absent without leave for a period in excess of 180 days during this period, without compelling circumstances warranting the prolonged unauthorized absence. The regional office determined that under 38 C.F.R. § 3.12(c)(6) the nature of his discharge from service in 1976 precluded the award of compensation benefits or health care benefits based on the period of service from February 3, 1967 to March 31, 1976. In letters in July 1982, the veteran was advised of these decisions, and of his right to appeal. On September 20, 1984, another claim for service connection for disability was received from the veteran. In an administrative decision in December 1984, the RO confirmed its prior denial of the veteran's claim, based on the nature of his discharge from service in 1976. The veteran presented a timely appeal. When the veteran testified at a hearing at the RO in February 1986, he described the circumstances when he incurred his wounds and the reasons for his going absent without leave. Pursuant to the Board's remand decision in December 1986, service medical records and additional personnel records were received. A correction to his DD 214 was received which showed that he was in Vietnam from April 1968 to June 1969 and that he was wounded in action in May 1969. The veteran's award of the Purple Heart and his assignments in 1969 and 1970 were also documented. In an administrative decision in August 1987, the RO determined that new and material evidence in the form of service medical and personnel records had been received. The RO concluded that these records, together with the veteran's testimony, indicated that there were compelling mitigating circumstances for the veteran's being absent without leave for the period from July 1970 to March 1976. The RO determined that the veteran had received overseas orders within months of recovering from a serious wound, while still assigned to an Infantry unit. It was concluded that the veteran's service from February 1964 to March 1976 had been terminated by discharge under honorable conditions for VA benefit purposes. Subsequently, in various rating determinations, the veteran was granted service connection for residuals of a fracture of the right femur, for lumbosacral pain and strain, for residuals of a shell fragment wound to the left thigh, for residuals of a shell fragment wound to the abdomen, and for venous insufficiency of the right lower extremity. All of these ratings were effective September 20, 1984. II. Analysis 38 C.F.R. § 3.12 provides that VA benefits are not payable unless the period of service in which the claim is based was terminated by a discharge or release under conditions other than dishonorable. A discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). 38 C.F.R. § 3.12 was amended by Public Law 95-126, enacted on October 8, 1977, so that VA benefits were not payable if a person received a discharge under other than honorable conditions issued as the result of being absent without leave for a continuous period of at least 180 days. This bar to benefits does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). Health care benefits shall be provided by Chapter 17, Title 38, United States Code, for those persons who received discharges under other than honorable conditions, except such benefits are not authorized for persons who received discharges under the various situations listed in 38 C.F.R. § 3.12(c). These include when a person is absent without leave for a continuous period of 180 days or more, without compelling circumstances being present. This regulation, 38 C.F.R. § 3.360 was effective April 11, 1978. Previous rating actions which are final will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. §§ 3.104, 3.105. A finally adjudicated claim (or rating action) is one that has become final by the expiration of one year after notice of such action is sent to the claimant, without a timely notice to appeal being received. 38 C.F.R. §§ 3.160, 20.200-20.202, 20.302. A veteran may reopen a claim for compensation benefits, after a finally disallowed claim, and compensation benefits may be awarded pursuant to the receipt of new and material evidence. 38 U.S.C.A. § 5108, 38 C.F.R. §§ 3.160. The effective date of the grant of service connection shall be the day following discharge from service, if application therefor is received within one year from discharge. The effective date of an award of compensation based on an original claim, or a reopened claim, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Under the provisions of 38 C.F.R. § 3.156, where the new and material evidence which is received consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the regional office. In this case, the initial claim for service connection for disability was received from the veteran on September 9, 1980. This claim was denied in 1980. The 1980 determination by the regional office concerning service connection did fail to consider the change in legislation that occurred as the result of Public Law 95-126, effective October 8, 1977, and the change of law in 1978 relating to health care. In October 1981, another claim for service connection for disability residual to wounds incurred in service was received from the veteran. In June 1982, the regional office determined that the veteran had completed his initial period of enlistment from February 3, 1964, to February 2, 1967, under honorable conditions, but that the service from February 3, 1967, to March 31, 1976, had been terminated by discharge that was under conditions other than honorable under the provisions of 38 C.F.R. § 3.12(c)(6). In September 1984, the veteran submitted another claim for service connection for disabilities received as the result of shell fragment wounds in service. Subsequently, pursuant to additional adjudication, the regional office received additional service medical and personnel records. With this new and material evidence, the regional office reasoned that there were compelling, mitigating circumstances relating to the veteran's extended period of absence without leave from July 1970 to March 1976. The regional office concluded that the veteran's entire period of service from February 1964 to March 1976 had been terminated by a discharge under honorable conditions for VA benefit purposes. In this case, the Board need not consider whether clear and unmistakable error was present in the regional office determinations in 1980 and 1982. Rather, under 38 C.F.R. § 3.156, since the new and material evidence used by the regional office to grant the previously disallowed claim of service connection was, in large part, based on service records, the former decisions are no longer considered final or valid. In essence, the veteran's claim in 1984 being allowed on the basis of new service records requires that the 1987 regional office administrative decision relate back to the initial 1980 determination and claim for service connection. 38 C.F.R. § 3.156. The effective date for the grant of service connection for the award of compensation benefits for disabilities received as the result of wounds incurred in service is September 9, 1980, the date of his original claim for compensation benefits, but not earlier. 38 U.S.C.A. § 5010; 38 C.F.R. §§ 3.156, 3.400. While the Board has granted an effective date of September 9, 1980 for service connection for disability residual to wounds received in service, it is the initial responsibility of the regional office to determine the proper rating for such disabilities from such date. Holland v. Gober, 124 F.3d 42 (1997). ORDER The veteran is entitled to the grant of service connection for disability residual to wounds received in service from September 9, 1980, the date of his original claim, but not earlier. To this extent, the benefits sought on appeal are granted, subject to the controlling regulations for the award of monetary benefits. REMAND Pursuant to the above decision, the grant of service connection for several disabilities has been made effective September 9, 1980. The regional office must now determine which of his currently recognized disabilities were present then and determine the appropriate rating for each of these disabilities. In this regard, it is noted, in particular, that the veteran had extensive treatment for the venous insufficiency of the right lower extremity on different occasions. Various private medical records and VA outpatient treatment reports relate to such treatment. Consequently, the veteran's claim for an increased rating for venous insufficiency of the right lower extremity is being specifically remanded to the regional office for another review. The regional office should adjudicate the proper rating to be assigned for venous insufficiency of the right lower extremity from September 9, 1980. In addition, it is noted that the veteran provided a written notice of withdrawal of his appeal for an increased rating for arthritis of the right ankle in a letter dated in September 1998. However, at his hearing before the Board sitting at Louisville, Kentucky, in November 1998, it appears that the veteran wanted to continue the appeal for the increased rating for the arthritis of the right ankle. He provided additional testimony relating to this issue. It is, therefore, unclear as to whether the veteran has withdrawn this issue. In addition, it is unclear for what period(s) he desires to seek an increased rating. The regional office should clarify whether the veteran still desires to pursue this issue as an appellate issue. Accordingly, the case is hereby REMANDED to the regional office for the following actions: 1. The regional office should review all of the veteran's records and assign appropriate ratings for the veteran's various disabilities for which service connection is appropriate effective from September 9, 1980. Specifically, the regional office should review the veteran's request for an increased rating for venous insufficiency of the right lower extremity for the entire period from September 9, 1980. 2. The regional office should clarify whether the veteran has withdrawn his appeal, or desires to continue his appeal, for an increased rating for arthritis of the right ankle, including the time period or periods he desires an increased rating. If he desires to continue his appeal, this issue should also be further reviewed by the regional office. If any of the claims are denied, the case should be processed in accordance with appropriate appellate procedures, including the issuance of a supplemental statement of the case. No action is required of the veteran unless and until he receives further notice. The purpose of this REMAND is to provide due process and further adjudication by the regional office in accordance with the above decision. The Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. ROBERT D. PHILIPP Member, Board of Veterans' Appeals Error! Not a valid link.