Citation Nr: 18132354
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 11-31 917
DATE:	September 6, 2018
ORDER
New and material evidence not having been submitted, the Appellant’s request to reopen the issue of whether his character of discharge bars him from VA benefits is denied.
FINDING OF FACT
1. In October 1985 and December 1993 the VA Regional Office (RO) denied the Appellant’s claims for VA benefits, finding that his discharge was issued under conditions that bar the payment of VA benefits. The Appellant did not appeal the decisions and no new evidence was received by VA within one year from the date that the RO mailed the notice of the determination to the Appellant.
2. New and material evidence has not been received since the previous final denial as to the issue of whether the Appellant’s character of discharge bars him from VA benefits.
CONCLUSION OF LAW
New and material evidence has not been received since the December 1993 decision, thus the issue of whether the character of the Appellant’s discharge is a bar to VA benefits cannot be reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board remanded the Appellant’s appeal in June 2014 and October 2017. It has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 
1. Whether VA has received new and material evidence to reopen the issue of whether the character of the Appellant's discharge from service bars him from VA benefits
In October 1985 and December 1993 the RO denied the Appellant’s claims for VA benefits, finding that his discharge was issued under conditions that bar the payment of VA benefits. Specifically, the RO explained that the Army discharged the Appellant in July 1969 under other than honorable conditions. The Appellant applied to upgrade his discharge, and the Army upgraded his discharge to under honorable conditions on July 5, 1977. However, as required by Public Law 95-126, in August 1978 the Army re-reviewed the previous upgrading of the Appellant’s discharge and determined that he does not qualify for upgrading under the new uniform standards for discharge review and thus did not affirm his upgraded discharge. The RO noted that a separation for discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. The RO thus concluded that the Appellant’s character of discharge is a bar for VA benefits. 
The Veteran did not file a timely notice of disagreement with the RO’s decision and no new evidence pertinent to the claim was received by VA prior to the expiration of the appeal period. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file. The Board notes that although some new service treatment records have been added to the Veteran’s file since the previous final denial, they are not relevant to the question of his character of discharge. Therefore, the October 1985 and December 1993 decisions are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103 (2017).  
In 2011 the Veteran again filed a claim for VA benefits.
The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996).  
New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2017). 
In connection with his claim to reopen, the Veteran has submitted statements drawing the VA’s attention to his DD215 correction to DD214. Those records were in evidence at the time of the previous final denial and thus do not constitute new evidence. The Veteran also requested that his service treatment records from a period of hospitalization be obtained. Those records were obtained; however, they are not material as to the issue of the character of the Veteran’s discharge.
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Based on the forgoing, the Board concludes that new and material evidence has not been submitted with regard to the previously denied claim of whether the character of the appellant’s discharge is a bar to VA benefits. Therefore, the claim may not be reopened, and the appeal must be denied. There is no reasonable doubt to be resolved as to reopening the claim.
 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Christensen 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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