Citation Nr: 18160658
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 18-27 576
DATE:	December 28, 2018
ORDER
Entitlement to service connection for lower back disability is denied.
Entitlement to service connection for sciatic nerve disability, right lower extremity is denied.
FINDINGS OF FACT
1. The appellant is ineligible for VA benefits for the period October 1960 to November 1962 due to a Bad Conduct Discharge by order of a general court martial.
2. The appellant’s behavior and mental state was not the result of a disease, and he did not meet the VA criteria for insanity at the time he committed the offenses that resulted in a bad conduct discharge.
3. The appellant does not have a lower back disability related to an eligible period of service.
4. The appellant does not have a sciatic nerve disability, right lower extremity related to an eligible period of service.
CONCLUSIONS OF LAW
1. A lower back disability, was not incurred in or aggravated during an eligible period of service. 38 U.S.C. §§ 101, 1131, 5303; 38 C.F.R. §§ 3.1, 3.4, 3.6, 3.12, 3.102, 3.354.
2. A sciatic nerve disability, right lower extremity was not incurred in or aggravated during an eligible period of service. 38 U.S.C. §§ 101, 1131, 5303; 38 C.F.R. §§ 3.1, 3.4, 3.6, 3.12, 3.102, 3.354.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant had service from October 1958 to October 1960 that is considered valid for VA purposes.  The appellant’s further service, from October 1960 to November 1962, is considered other than honorable and therefore not valid for VA purposes.  Of record is an administrative decision by the AOJ.
This matter comes before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).
Service Connection
Generally, to establish service connection a claimant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).
The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. VA compensation is not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101, 5303; 38 C.F.R. § 3.12(a).  When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of Veteran. Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).
A Veteran is “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).  Thus, a discharge or release from a period of active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits for a disability that may have been incurred during that period. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a).  Service department findings are binding and conclusive upon VA for purposes of establishing an individual’s service.  VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (“service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces”).
Benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) as a conscientious objector who refused to perform military duty, wear a uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court-martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an absence without leave (AWOL) for a continuous period of at least 180 days, with certain exceptions.
A discharge or release from service is not a bar to the payment of benefits if the former service member’s behavior and mental state was the result of a disease and it is found that the former service member was insane at the time of committing the offense causing such discharge. 38 C.F.R. §§ 3.12(b), 3.354.  Here, the appellant has not been found to have been insane, and is therefore ineligible for compensation benefits stemming from his later period of service.
A July 2017 VA administrative decision found that the appellant’s service from October 1960 to November 1962 is not valid for VA purposes.  It was found to be under other than honorable conditions because of a Bad Conduct Discharge due to his being AWOL for a total of 122 days between April 1960 and July 1962 and leaving base while under restriction.
A person with a discharge that has been found to be other than honorable for VA purposes, but who received an honorable discharge for a separate period of service may still be eligible for benefits earned solely for the honorable period of service.  The appellant in this case had a distinct period of valid service from October 1958 to October 1960.  Should either of the appellant’s claimed disabilities stem from this period, he may be eligible for compensation.  The Board will therefore also consider each claim as applying to that period.
1. Lower back disability
The appellant contends that he is entitled to VA benefits for a lower back disability.  However, he has testified to the development of this disability in his later period of service, from which he received a Bad Conduct Discharge.  There is one complaint of a back ache in the appellant’s service treatment records, from March 1962.
 

The appellant has not claimed, nor is there evidence in the record indicating that this disability developed in or is related to his prior, valid period of service from October 1958 to October 1960.  The appellant’s 1959 reenlistment medical examination affirmatively reports good health.
The Board finds that the appellant’s Bad Conduct Discharge was at the order of a general court martial and is a bar to entitlement to VA benefits as a matter of law.  Because the appellant has only asserted that his lower back disability is related to this later period of service, he is ineligible to receive compensation benefits for this disability.  As the bar to benefits for this period of service is a matter of law, the “benefit of the doubt” rule does not apply, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In regard to the period of valid service, there is no evidence linking low back pathology to such service.
2. Sciatic nerve disability, right lower extremity
The appellant contends that he is entitled to VA benefits for a sciatic nerve disability in his right leg.  Here also, he has testified to the development of this disability in his later period of service, from which he received a Bad Conduct Discharge.  The appellant asserts that a sore developed on the top center of his right foot but that he was cleared for duty after reporting to sick call.  He reports that he saw a civilian doctor in Kentucky who told him that it was very serious and that he was lucky to not lose the foot.
The appellant has not claimed, nor is there evidence in the record indicating that this disability developed in or is causally related to his prior, valid period of service from October 1958 to October 1960.  The appellant’s 1959 reenlistment medical examination affirmatively reports good health.
The Board finds that the appellant’s Bad Conduct Discharge was at the order of a general court martial and is a bar to entitlement to VA benefits as a matter of law.  Because the appellant has only asserted that his sciatic nerve disability is related to this later period of service, he is ineligible to receive compensation benefits for this disability.  As the bar to benefits for this period of service is a matter of law, the “benefit of the doubt” rule does not apply, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
H. N. SCHWARTZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S.W. Strike, Associate Counsel 

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