Citation Nr: 1749037	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-18 149	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to VA benefits for the period from October 1998 to August 2000.

2. Entitlement to service connection for a left foot disorder.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel




INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from June 1998 to December 1998. The Veteran also has a period of service from October 1998 to August 2000 that is currently at issue.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for a left foot disability. In April 2014, this appeal was remanded by a different Veterans Law Judge; it has since been reassigned to the undersigned.
 
The Board notes that the Veteran originally requested a Board hearing on his June 2012 substantive appeal (VA Form 9). In March 2014, the Veteran provided written correspondence that he wished to withdraw his request for such a hearing. Accordingly, the Board considers the Veteran's request withdrawn.

As discussed in the April 2014 Board remand, the record has raised the issue as to whether the Veteran has active duty service during the time for which service treatment records reflect treatment for the Veteran's left foot. The Board has added that issue as a separate claim, as reflected on the title page. Because the active duty service issue adjudicated by the RO subsequent to the April 2014 Board remand and the claim is now being granted, it is not prejudicial to the Veteran for the Board to proceed with adjudication.

The issue of entitlement to service connection for a left foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.




FINDING OF FACT

After resolving reasonable doubt in favor of the Veteran, the Veteran's uncharacterized discharge from his period of active duty service from October 1998 to August 2000 was under conditions other than dishonorable.


CONCLUSION OF LAW

The Veteran is entitled to VA benefits for the period of service from October 1998 to August 2000. 38 U.S.C.A. §§ 101, 5107, 5303 (West 2014); 38 C.F.R. §§ 3.1, 3.12, 3.203 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of notice and assistance requirements on this matter. Any notice or duty to assist omission is harmless.

II. Legal Criteria 

For VA purposes, a "veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). If the former service member did not die in service, compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. See 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12.

Military history information obtained from the VA/Department of Defense (DOD) Identity Repository (VADIR) is considered an electronic DD Form 214 (Certificate of Release or Discharge from Active Duty), and is acceptable for verification of service. VA Adjudication Manual, M21-1, III.ii.6.B.3.c.

Where enlisted personnel are administratively separated from service on the basis of proceedings initiated on or after October 1, 1982, the separation may be classified as one of the three categories of administrative separation that do not require characterization of service by the military department concerned (i.e., an uncharacterized discharge). In such cases conditions of discharge will be determined by VA as follows: (1) entry level separation, which shall be considered under conditions other than dishonorable; (2) void enlistment or induction, which shall be reviewed based on facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable; and (3) dropped from the rolls, which shall be reviewed based on facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable. 38 C.F.R. § 3.12(k).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The reasonable doubt doctrine is also applicable even in the absence of official records. 38 C.F.R. § 3.102.

III. Factual Background

The Veteran entered the Army Reserves (Reserves) in May 1998. Thereafter, he went on ACDUTRA from June 1998 to December 1998 and was honorably discharged, as reflected in a DD Form 214. The Veteran thereafter signed an enlistment contract in April 1999 to serve on active duty for three years.

The Veteran's DD Form 214 for his period of service ending in August 2000 cannot be found. As reflected in the VA/DOD VADIR, the Veteran served on active duty from October 1998 to August 2000, and had an uncharacterized discharge.

Military records reflect that the Veteran was discharged back to the Reserves in August 2000, and was honorably discharged therefrom in May 2006.

IV. Analysis  

Because the VA/DOD VADIR system shows that the Veteran served on active duty from October 1998 to August 2000, the Board considers this to be his electronic DD Form 214 and a verification of active duty service. See VA Adjudication Manual, M21-1, III.ii.6.B.3.c. [The Board is aware that this period of time appears to conflict with the Veteran's period of ACDUTRA, leading to the conclusion that he was both on ACDUTRA and active duty from October 1998 to December 1998. Nonetheless, the electronic DD Form 214 is a valid verification of active duty service.]

Unfortunately, the circumstances of the Veteran's uncharacterized service have not been described in the military records available to the Board. The Board notes that he served over a year on active duty, so it is unlikely that the Veteran's uncharacterized discharge was due to an entry level separation. Thus, for either of the categories of uncharacterized discharges remaining, the Board must make a factual determination about whether the Veteran's discharge was under conditions other than dishonorable.

The Board finds it persuasive that the Veteran was discharged from active duty back to the Reserves, that he served thereafter for approximately six years, and that he was eventually honorably discharged. It is unlikely the Veteran would have been discharged back to the Reserves, and honorably discharged therefrom, if his discharge from active duty was under dishonorable conditions. 

Accordingly, after resolving reasonable doubt in favor of the Veteran, his uncharacterized discharge was under conditions other than dishonorable, and he is entitled to VA benefits for the period of active duty service from October 1998 to August 2000. 


ORDER

The Veteran is entitled to VA benefits for his period of active duty service from October 1998 to August 2000; the appeal is granted.


REMAND

Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim so that every possible consideration is afforded.

The Veteran's service treatment records reflect numerous treatments for his left foot during his period of active duty service. See, e.g., April 1999, October 1999, and May 2000 records. Private treatment records reflect a diagnosis of metatarsalgia, intractable skin lesions, and tailor's bunion. The Veteran has not been afforded a VA examination for his left foot to resolve the medical questions presented. Accordingly, remand is required to schedule a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board notes that the Veteran is currently incarcerated. VA has special procedures for handling the scheduling of VA examinations for incarcerated Veterans. The duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, because those individuals are entitled to the same care and consideration given to non-incarcerated Veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)).

VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See id. Nevertheless, VA's duty to assist an incarcerated Veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See VA Adjudication Manual, M21-1, III.iv.3.F.2.d.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should schedule the Veteran for an examination to determine the likely cause for his left foot disability in adherence with VA's guidelines for examinations of incarcerated Veterans. At least two attempts to contact the Veteran's prison facility or state prison authorities and schedule the examination should be made. All such attempts should be noted in the record, including all communications with identified prison personnel or state prison authorities.

The examiner is asked to respond to the following:

(a) Please identify, by diagnosis, the Veteran's left foot disability(ies) during the appeal period (from April 2011).

(b) For each disability diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that it was incurred in or related to the Veteran's military service? Please explain why. The Veteran's treatment for his left foot during service should be discussed.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

2. The AOJ should then review the record and re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014).



_________________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s