Citation Nr: 0003294 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-11 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether a new factual basis has been presented to warrant reconsideration of a March 1983 administrative decision. 2. Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service previously determined to be creditable from July 1970 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) administrative and rating decisions dated in May 1998. The administrative decision found that there was no new and material evidence to change the result of a March 1983 administrative decision on the character of the veteran's discharge. The rating decision found that the veteran's seizure disorder was incurred during other than honorable service from July 1973 to January 1976, and that the veteran was therefore not entitled to service connection for a seizure disorder. The veteran appealed, contending that his character of discharge was not a bar to VA benefits. A hearing was held in June 1999 in Washington, D.C., before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). For reasons to be discussed, further development will be required prior to a final decision. FINDING OF FACT Evidence received since the March 1983 administrative decision contains substantially different facts from those presented at the time of the prior decision. CONCLUSION OF LAW A new factual basis, permitting readjudication of the issue of whether the character of the veteran's discharge constitutes a bar to VA benefits, has been presented. 38 U.S.C.A. §§ 101(2), (18), 1110, 5303 (West 1991); 38 C.F.R. §§ 3.12, 3.360 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION As noted above, the veteran's claim for service connection for a seizure disorder was denied on the basis that the character of his discharge from the applicable period of service was a bar to VA benefits. He was discharged from service in January 1976, under other than honorable conditions (OTHC), due to a period of absence without official leave (AWOL) of 114 days. In general, a discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA benefits. 38 U.S.C.A. §§ 101(2), (18); 38 C.F.R. § 3.12(a). Consequently, in a case involving a discharge under OTHC, it must be determined whether the discharge was under dishonorable conditions. Types of discharges which constitute a bar to VA monetary benefits are set forth in 38 U.S.C.A. § 5303 and 38 C.F.R. § 3.12. U.S.C.A. § 5303(a). As a threshold matter, the Board notes that his status as a "veteran" was established by a March 1983 administrative decision, which found his service from July 2, 1970 to July 1, 1973, when he was eligible for complete separation, to be under conditions other than dishonorable. See 38 U.S.C.A. §§ 101(2), (18), 1110; Cropper v. Brown, 6 Vet.App. 450 (1994). However, for monetary benefits based on service connection, the period of service on which the entitlement is based must be under conditions other than dishonorable. 38 U.S.C.A. § 5303, 38 C.F.R. § 3.12. Consequently, his status as veteran does not, contrary to his arguments at his hearing before the undersigned, negate the effect of a subsequent undesirable discharge, for claims based on that service. The character of the veteran's discharge was previously addressed in an administrative decision dated in March 1983. According to this decision, the veteran had been eligible for a complete separation from service on July 1, 1973, he requested a discharge for the good of the service to avoid a trial by special court martial for his period of AWOL, and there was no evidence of insanity. It was concluded: Although the veteran's discharge on January 22, 1976, is considered to have been issued under other than honorable conditions, the veteran had honest, faithful and meritorious service from July 2, 1970 to July 1, 1973 and eligibility for [VA] purposes is established for that period under 38 U.S.C. § 101(18) []. The veteran is entitled to health care under Chapter 17, Title 38, U.S.C. for any disabilities determined to be service connected for the period July 2, 1970 to January 22, 1976. The March 1983 notification to the veteran of the administrative decision informed him that VA had determined that his discharge was issued under conditions which constituted a bar to the payment of VA benefits, and that, as a consequence, the period of service did not qualify him for the benefits he had applied for, or any other benefits, with the possible exception of health care under Chapter 17, Title 38, United States Code. Although the file does not contain a claim for "the benefits he had applied for," which precipitated the administrative decision, in April 1982, the veteran was sent a letter from the VA, noting that he had "applied for hospitalization based upon military service. Entitlement to benefits is contingent upon discharge from military service under conditions other than dishonorable." He was further informed that his service had been terminated by an "undesirable, bad conduct, or other than honorable discharge," and that VA was required to examine all relevant facts leading to his discharge for the purpose of determining "whether or not it was issued under conditions other than dishonorable." The veteran did not appeal the administrative decision; accordingly, that determination is final, or res judicata, and may not be reconsidered on the same factual basis. D'Amico v. West, 12 Vet.App. 264 (1999). However, if a different factual basis is submitted, the claim can be readjudicated. Id., at 268. In this case, the factual basis of the previous decision cannot be ascertained with any degree of certainty. The record does not identify the benefit requested at the time, and the available evidence contains seemingly contradictory information, with an April 1982 VA letter referring to a claim for "hospitalization based on military service," while the March 1983 letter informed him that his "period of service did not qualify him for the benefits he had applied for, or any other benefits, with the possible exception of health care. . ." Moreover, the administrative decision specifically found he was entitled to health care benefits. Additionally, the administrative decision did not explicitly address whether the veteran's inarguably under OTHC discharge was under dishonorable conditions, nor were any of the specific bars to benefits discussed. Based on these factors, we find that the current claim, which originated from a claim for service connection for a seizure disorder, presents a new factual basis. Accordingly, the issue of the character of his discharge must be readjudicated on the merits. D'Amico. ORDER A new factual basis for reconsideration of whether the character of the veteran's discharge constitutes a bar to VA compensation benefits has been presented; to that extent only, the appeal is allowed. REMAND The veteran's claim pertaining to the character of his discharge is well grounded; that is, he has presented a claim which is plausible. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (1997). However, the veteran has not been informed of the basis for the RO's determination that his discharge precluded him from establishing entitlement to VA monetary benefits. In March 1983, when initially considered, as noted above, the RO did not explicitly find that the veteran's discharge under OTHC was under dishonorable conditions. Similarly, the May 1998 administrative decision and the July 1998 statement of the case are devoid of any discussion of the rationale for finding that the character of the veteran's discharge constitutes a bar to VA monetary benefits. Accordingly, in its determination on the merits of this claim, the RO must explicitly address the bars to benefits, set forth in 38 U.S.C.A. § 5303 and 38 C.F.R. § 3.12, that apply to its decision. In addressing this issue, the RO's attention is drawn to apparent discrepancies contained in the copies of the personnel records on file, which also appear to be incomplete. For instance, the copies received from the service department contain a page titled "SECTION VII-CURRENT AND PREVIOUS ASSIGNMENTS" which only covers the period from May 1974 to January 1976. In addition, another copy of this document, submitted by the veteran in connection with the current appeal, covers the period from October 1973 to September 1975, but contains duty assignments which are inconsistent with the other version. It is unclear which of these two forms constitutes the official record of the veteran's service. Similarly, Enlisted Efficiency Reports (EEF) submitted by the veteran contain information, such as duty position and dates of rank, which conflict with data contained in the personnel records. Since an accurate record of the veteran's service would be relevant to the issue of whether the veteran's conduct in service constituted "willful and persistent misconduct," one of the regulatory bars to entitlement set forth in 38 C.F.R. § 3.12(d), the RO must attempt to clarify the apparent discrepancies contained in the personnel records on file, and obtain a complete set of personnel records. Additionally, the RO declined to address the issue of service connection for a seizure disorder, on the grounds that the character of his discharge precluded compensation. However, it is to be noted that, although the statutory bars set forth in 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c) are absolute bars to benefits, the regulatory bars described in 38 C.F.R. § 3.12(d) do not preclude the veteran from establishing service connection, for the purposes of health care and related benefits authorized by Chapter 17, Title 38, U.S.C.. 38 C.F.R. § 3.360 (1999). Accordingly, unless the character of the veteran's discharge falls within a statutory bar to benefits, the issue of service connection must be addressed. 38 C.F.R. § 3.360(c). Finally, the RO is advised that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "Court") has found that a remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet.App. 268 (1998). While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, it is felt that proceeding with a decision on the merits at this time would not withstand scrutiny by the Court. For that reason and to ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his appeal, and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following: 1. The RO should obtain a complete set of the veteran's official military personnel records from the National Personnel Records Center (NPRC), or other appropriate location. All attempts to obtain these records should be documented in the claims folder, as well as any responses, including negative, received in response to the requests. The veteran should also be requested to provide copies of all military personnel records in his possession, as well as any information or supporting documentation he may have regarding which records are accurate. 2. Thereafter, but regardless of whether any information is received, the RO should adjudicate the question of whether the character of the veteran's discharge constitutes a bar to VA compensation benefits, on the merits, with explicit consideration of the applicable law and regulations. 3. Unless the RO finds that there is a statutory bar to VA benefits, as defined in 38 U.S.C.A. § 5303 and 38 C.F.R. § 3.12(c), the RO should adjudicate the issue of service connection for a seizure disorder. If service connection is granted, the RO should note, on the rating decision, and in the notification to the veteran, whether the grant is limited to health care benefits pursuant to Chapter 17, Title 38, U.S.C., or whether the grant includes entitlement to compensation. 4. If the decision as to any issue, or part thereof, remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case that clearly informs him of the basis of the decision, contains the relevant portions of the applicable law and/or regulations, and discusses the application of such to the facts of the veteran's case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JEFF MARTIN Member, Board of Veterans' Appeals