BVA9504129 DOCKET NO. 91-47 142 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the character of the veteran's discharge from a period of military service from May 1958 to August 1961 constitutes a bar to Department of Veterans Affairs benefits for that period, exclusive of health care under Chapter 17, Title 38, United States Code. 2. Entitlement to service connection for gastrointestinal disability, left knee disability, right knee disability and hemorrhoids, for the purpose of entitlement to benefits other than health care. 3. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had active honorable service from September 1954 to February 1958. He had another period of service from May 1958 to August 1961 that ended with an other than honorable discharge. In a May 1991 rating action, the Department of Veterans Affairs (VA) Regional Office St. Petersburg, Florida, denied entitlement to service connection for gastritis, bilateral knee conditions and hemorrhoids. In an August 1991 rating action the regional office denied entitlement to a permanent and total disability rating for pension purposes. The veteran disagreed with those decisions. The case was initially before the Board of Veterans' Appeals (Board) in April 1992 when it was determined that the issue of whether the character of the veteran's discharge from his period of service from May 1958 to August 1961 was inextricably intertwined with the claim for service connection for the various conditions. The case was remanded by the Board for further action with regard to the character of discharge question. In November 1993 the case was again remanded by the Board for further action. The case is now before the Board for further appellate consideration. The record reflects that in February 1994 the Board received a copy of a May 1992 application by the veteran to the service department for an upgrade of his other than honorable discharge. The application accompanied a request for certain information from the Military Review Boards Agency. The RO apparently sent the information in March 1994. The record does not show that the service department has corrected his record in any way. If and when such action is accomplished, it could be the basis for a reopened claim by the veteran as it would be new and material evidence. Since it is not of record, it is not part of the current appeal. 38 C.F.R. § 20.1304 (1993). Since the veteran received an administrative other than honorable discharge from his period of service from May 1958 to August 1961 and since none of the bars listed in 38 C.F.R. § 3.12(c) apply, he is entitled to VA health care under Chapter 17, Title 38, United States Code for any disability incurred or aggravated during that period of service in line of duty. 38 C.F.R. § 3.360 (1993). This issue of entitlement to service connection for disability for treatment purposes has not been adjudicated by the RO and is not part of the pending appeal. The Board notes that in a letter of April 1992 the RO informed the veteran that he had the right to medical treatment for "service related" conditions and that he could apply to VA health care facilities for such benefits. While this letter is not, technically, incorrect, it is misleading. The RO has never considered the issue of entitlement to service connection for this purpose even though 38 C.F.R. § 3.360(c) specifies that the same criteria will be used as is applicable to determinations of service incurrence. The veteran's claims for service connection must be considered for this purpose. The matter is referred to the RO for the necessary adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that the character of his discharge from his period of military service from May 1958 to August 1961 should not constitute a bar to the receipt of VA benefits. His request for a hardship discharge from service had been denied on two occasions and his commanding officer believed that he would be awarded a general discharge from service rather than an undesirable discharge since he had committed only minor offenses in an effort to hasten his separation from service. It is further maintained that service connection should be granted for a gastrointestinal condition since the veteran was treated for a gastrointestinal disorder in late 1956. Although a gastrointestinal series did not reveal an ulcer, considering the severity of the veteran's attack and the elapsed time before the X-ray was taken, he may have had a small ulcer that had healed. Examinations in May 1957 and January 1958 should have reflected that he still had occasional bouts of indigestion for which he usually took baking soda or Tums. He also initially reported hemorrhoids during service and was told to take over-the-counter medication for that condition. He sustained injuries to his knees on several occasions during service and an X-ray was taken in February 1960 which was the first time that one of his knees "locked up" or refused to move. In 1963 or 1964 he was injured in a motor vehicle accident and received severe sprains of his right wrist, arm and shoulder, upper and lower back, left knee and ankle. He has been unable to work as a result of all of his disabilities. His last full-time employment was for about two months and ended in August 1988. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the character of the veteran's discharge from military service for the period from May 1958 to August 1961 constitutes a bar to the receipt of VA compensation benefits based on that period of service. It is the further decision of the Board that the preponderance of the evidence is against the veteran's claims for service connection for purposes other than health care for a gastrointestinal disability, left and right knee disabilities and hemorrhoids and entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran had a period of active and honorable service from September 1954 to February 1958. 3. He reenlisted on May 26, 1958, for a period of three years. On October 27, 1959, he was given an honorable discharge for the purpose of immediate reenlistment. He was not eligible for complete separation from service at that time. On August 26, 1961, he received an other than honorable discharge from the service. 4. The veteran received non judicial punishment on five occasions from February 1960 to May 1961 for issuing a worthless check, disorderly conduct, failure to report for his place of duty, failure to repair and leaving his place of duty without proper authority. He was also given a summary court-martial for a period of unauthorized absence from May 22 to May 25, 1961. 5. The veteran's offenses during his military service from May 1958 to August 1961 were willful and persistent. There is no indication he was insane at the time of commission of any of the offenses. 6. A chronic gastrointestinal condition, a disability of either knee or hemorrhoids were not present during the veteran's period of active honorable service from September 1954 to February 1958. Those conditions were initially reported after the veteran's period honorable service and did not originate during that period of service. 7. The veteran, who was born in August 1937, completed two years of college and has had employment experience as a painter and roofer. He has not been employed for several years. 8. The veteran now has chronic gastritis, a low back condition, knee disabilities and hemorrhoids. 9. The gastritis and back conditions are each 10 percent disabling and the knee disabilities and hemorrhoids are no percent disabling. The combined rating for the veteran's disabilities is 20 percent. 10. The veteran's disabilities do not preclude him from engaging in substantially gainful employment considering his age, education and employment experience. CONCLUSIONS OF LAW 1. The veteran was discharged from his period of service from May 1958 to August 1961 because of willful and persistent misconduct. His discharge from that period of service is considered to have been issued under dishonorable conditions. 38 U.S.C.A. §§ 101, 5107 (West 1991); 38 C.F.R. §§ 3.12, 3.13 (1993). 2. Chronic gastritis, a left knee disability, a right knee disability and hemorrhoids were not incurred in or aggravated during the veteran's period of active and honorable service. Degenerative arthritis involving the knees may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101,1110, 1112, 1113,1131, 1137, 5107 (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309 (1993). 3. The veteran is less than 100 percent disabled and is not unemployable by reason of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. I. The Character of Discharge Issue The record reflects that the veteran had a period of active and honorable service from September 1954 to February 1958. The record further discloses that on May 26, 1958, he reenlisted for a period of three years. He was given an honorable discharge on October 27, 1959, for the purpose of immediate reenlistment. He reenlisted on October 28, 1959, and was discharged on August 26, 1961, under other than honorable conditions. 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. A discharge or release from service under certain circumstances is considered to have been issued under dishonorable conditions unless it is found that the person was insane at the time of committing the offenses causing such release or discharge. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d). Under the provisions of 38 C.F.R. § 3.13, a discharge to reenlist is a conditional discharge if it was issued during peacetime prior to the date the person was eligible for an unconditional discharge. Except as provided in subparagraph (c) of 38 C.F.R. § 3.13, the entire period of service under the circumstances stated above constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service, except in specific cases relating to VA death pension. 38 C.F.R. § 3.13(c) provides that, despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at the time except for the intervening enlistment or reenlistment. In this particular case, as noted previously, the veteran was given an honorable discharge on October 27, 1959. That, however, was for the purpose of immediate reenlistment. At that time, he was not eligible for complete separation and that discharge accordingly was conditional in nature. His reenlistment in May 1958 was for a period of three years and as the instances of misconduct were during that three-year period, it may not be held that he would have been eligible for a discharge or release under conditions other than dishonorable at the end of his initial period of obligation. Thus, his service from May 1958 to August 1961 is considered to constitute one period and his entitlement to VA benefits is determined by the character of the final termination of that period of service. The veteran's service records reflect that from February 1960 to May 1961 he was afforded non judicial punishment on five occasions for offenses consisting of issuing a worthless check, disorderly conduct, failing to report for his duty as mess attendant (five hours late), failure to repair and leaving his place of duty without proper authority. He was given a summary court-martial for a period of unauthorized absence from May 22 to May 25, 1961. In the recommendation for his discharge in June 1961, his commanding officer indicated that since being assigned to the unit in January 1960 the veteran had been a constant source of trouble. It was indicated that he required constant supervision to ensure job performance and he had been repeatedly counseled by the commanding officer for multiple offenses to no avail. It was indicated that constant control had to be maintained by supervisory personnel over the veteran to ensure his presence at assigned tasks. It was recommended that the veteran be eliminated from service with an undesirable discharge. In the Board's judgment, the repeated offenses during the veteran's service that were committed over an extended period of time establishes a pattern of willful and persistent misconduct. A psychiatric evaluation in May 1961 indicates that the veteran had the mental capacity to understand the nature and probable consequences of all his acts. Although the veteran has indicated that he had applied for a hardship discharge on two occasions and his requests had been denied, there is no evidence of record corroborating this assertion. In any event, the denial of such request would not have justified the veteran's repeated offenses against military authority. Accordingly, the Board concludes that the veteran's discharge from his service from May 1958 to August 1961 was a result of willful and persistent conduct and was issued under dishonorable conditions. Thus, there is no entitlement to VA benefits based on that period of service, exclusive of health care under Chapter 17, Title 38, United States Code. 38 U.S.C.A. § 101; 38 C.F.R. §§ 3.12, 3.13. II. The Claim for Service Connection for Gastritis, a Left Knee Disability, a Right Knee Disability and Hemorrhoids The veteran's service medical records reflect that he was treated at a British hospital during October and November 1956 with a complaint of upper abdominal pain. A diagnosis of acute gastritis was made. He was admitted to a United States Army hospital on November 30, 1956, for observation for a possible duodenal ulcer. The veteran was treated with bland diets and symptomatic measures. He experienced no discomfort while in the hospital. A gastrointestinal X-ray series was normal. It was indicated that no disease had been found and he was discharged to duty in December 1956. When the veteran was examined by the service department in May 1957 there was no reference to a gastrointestinal problem. When he was examined in January 1958 it was indicated that he had been treated for stomach trouble from October to December (1957). A gastrointestinal condition was not noted on the medical examination report. In a report of medical history completed by the veteran in May 1958 it was indicated that he had been treated for stomach trouble in late 1956. In February 1960 he was seen on an outpatient basis for minor trauma to the right knee. In August 1960 he reported midepigastric discomfort. On examination the abdomen was soft and there was no guarding or masses. When he was examined for release from active duty in June 1961 clinical evaluation of the abdomen and lower extremities was reported being normal. The anus and rectum were also reported to be normal. The veteran's initial claim for VA disability benefits was submitted in January 1991. He referred to indigestion in 1956, knee injuries in 1960 and hemorrhoids in 1956. When the veteran was examined by the VA in July 1991 he noted his hospitalization in 1956 in a British military hospital and a United States Army hospital for gastrointestinal problems. He stated he had continued to have soreness in the stomach on an intermittent basis. He reported that when he was under stress his stomach bothered him the most. He reported that he had injured both of his knees in 1959 while stationed in Alaska. He indicated that he had pain in his knees especially in cold weather. He reported that he had been treated for hemorrhoids on an intermittent basis for the past 30 years without surgery. On physical examination the abdomen was soft and there was no tenderness in the epigastric area. There was no rebound tenderness or rigidity. The examiner indicated that no hemorrhoids could be observed. Both knees were examined and there was no swelling or problems with manipulation, squatting, etc. An upper gastrointestinal X-ray series showed minimal intermittent gastroesophageal reflux but no evidence of a hiatus hernia or peptic esophagitis. The gastric peristalsis and mucosal folds were not remarkable. There was some prolapse of the pyloric mucosa into the base of the duodenal bulb but the bulb was smooth and outlined and without evidence of irritability or ulceration. X-ray studies of both knees showed some spurring of the patellae. The knees were otherwise unremarkable. Diagnoses were made of history of recurrent gastritis; history of knee injury with recurrent arthralgia; history of recurrent hemorrhoids without surgery; and history of injury to the low back with continued discomfort. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnoses including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In this particular case, the veteran's service medical records reflect that he was treated at a British medical facility during October and November 1956 with a complaint of abdominal pain and acute gastritis was diagnosed. He was hospitalized at a United States Army hospital later that same year and it was felt that he might have an ulcer; however, a gastrointestinal X-ray series did not reflect any ulcer or other pathology. It was eventually determined that the veteran did not have any disease and he was discharged to duty. His initial claim for VA disability benefits was not submitted until many years following his release from active duty and a gastrointestinal X-ray study conducted during the July 1991 VA examination did not reflect the presence of an ulcer. Recurrent gastritis was diagnosed by history only. There is no medical evidence or other evidence of record, apart from the veteran's assertions, indicating any treatment for gastrointestinal problems during the many intervening years between his release from active duty and the VA examination. Accordingly, under these circumstances, the Board concludes that the episode of gastritis for which the veteran was treated in service represented an acute and transitory disorder that resolved with treatment. His current gastrointestinal problems are considered to be unrelated to those experienced in service. Accordingly, service connection for a chronic gastrointestinal disability would not be warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The only reference to a right knee condition in the veteran's service medical records was in February 1960. The trauma to the knee was described as minor in nature. Knee conditions, including degenerative arthritis, were initially reported thereafter only recently. Thus, it appears that the in-service incident involving his knee was acute and transitory and caused no permanent disability. An evidentiary basis to establish service connection for knee conditions has not been established. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. The veteran's service medical records reflect that in medical history forms at the time of his examination for entry into service in September 1954 and on a January 1958 examination he reported having or having had piles or rectal disease. However, clinical evaluation of the anus and rectum on those occasions were reported to be normal. There was no other reference to hemorrhoids in the veteran's service medical records and hemorrhoids were not demonstrated on the recent VA examination. Accordingly, there is no basis to establish service connection for hemorrhoids. III. The Claim for Entitlement to a Permanent and Total Disability Rating for Pension Purposes The record reflects that the veteran was born in August 1937 and completed two years of college. He has indicated that he has had employment experience as a painter and roofer. He stated that he has not been employed for several years. On the July 1991 VA examination, the veteran was 5 feet 11 inches tall and weighed 193 pounds. His blood pressure was 136/90. There were slightly diminished breath sounds with no rales. His heart sounds were good without murmurs or enlargement. As noted previously the abdomen was soft without tenderness in the epigastric area. There was no rebound tenderness or rigidity and the liver and spleen were not palpable. Examination of the low back showed no spasm of the paravertebral muscles. He had a slight scoliosis of the lower spine. He had no problems with flexion, extension, leg raising, etc. The veteran reported that his back hurt severely all the time. There was no swelling of his knees or problems with manipulation, squatting, etc. The remainder of the physical examination did not reflect any significant abnormality. As noted previously X-ray studies of the veteran's knee showed some spurring of the patella. An X-ray study of the lumbosacral spine showed good alignment with well-maintained vertebral heights and intervertebral disc spaces. There were degenerative changes at the L3-L4 level. The gastrointestinal X-ray series showed a minimal intermittent gastroesophageal reflux but no hiatus hernia or peptic esophagitis. There was no evidence or irritability or ulceration of the duodenal bulb. As noted previously, recurrent gastritis, knee injuries with recurrent arthralgia, recurrent hemorrhoids without surgery and injury of the low back with continued discomfort were diagnosed by history. After reviewing the evidence of record, the Board finds that the veteran's low back condition may be evaluated as 10 percent disabling on the basis of his complaint of pain since there is no muscle spasm and no limitation of motion of the lumbar spine. 38 C.F.R. Part 4, Diagnostic Code 5292. The veteran's gastrointestinal disorder is manifested by complaints of stomach soreness and gastroesophageal reflux; however, those symptoms would not warrant more than a 10 percent rating. 38 C.F.R. Part 4, Diagnostic Code 7307. The veteran had no swelling or other problems with his knees and hemorrhoids were not shown on the VA examination. Thus, evaluations in excess of no percent would not be warranted for those conditions. 38 C.F.R. Part 4, Diagnostic Codes 5257, 7336. A combined 20 percent evaluation is in order for all of the veteran's disabilities. In this case the veteran does not meet the percentage requirements for disability pension. That is, he does not have at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 4.16, 4.17. Further, the evidence in the Board's opinion does not establish that the veteran is unemployable by reason of his disabilities, age, occupational background and other related factors. Although the veteran has several disabilities, as noted previously, the record does not establish that the disabilities are of such a nature and severity so as to permanently prevent him from engaging in all types of substantially gainful employment. Accordingly, a permanent and total disability rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b)(2). The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER The character of the veteran's discharge from a period of military service from May 1958 to August 1961 constitutes a bar to VA benefits for that period, exclusive of health care under Chapter 17, Title 38, United States Code. Entitlement to service connection for other than health care purposes for gastritis, a left knee disability, a right knee disability and hemorrhoids is not established. Entitlement to a permanent and total disability rating for pension purposes is not established. The benefits sought on appeal are denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.