12-07 835
12-07 835
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served in multiple periods: honorable Air Force service (Dec 1978–Apr 1980), Army service (Jun 1981–Oct 1982) with a non‑honorable/voided discharge for VA purposes, Navy service (Mar 1983–Oct 1983) with entry‑level separation, and alleged Army service under an alias J.D.N. (Apr 1986–Mar 1987).
- Veteran seeks to reopen service connection for a right knee disability and to reopen the character‑of‑discharge determination for the Jun 1981–Oct 1982 Army service (which currently bars benefits).
- Board previously held the knee claim in abeyance pending development of an informal claim to reopen the character‑of‑discharge issue and clarification of other service periods.
- RO developed records but failed to adjudicate the informal claim to reopen the character‑of‑discharge determination and did not fully pursue records for the alias J.D.N.; RO also scheduled a VA exam but sent notice to an incorrect address and the Veteran missed the exam.
- Board remanded for (1) adjudication of whether new and material evidence reopens the character‑of‑discharge determination (including consideration of Navy and alias Army service), (2) collection/association of all records for J.D.N., (3) a new VA examination with proper notice addressing whether the claimed knee condition is at least as likely as not related to the Veteran’s honorable Air Force service (and explicitly not considering injuries from the barred Army service), and (4) readjudication of whether new and material evidence reopens the knee service‑connection claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence reopens the character‑of‑discharge determination for Jun 1981–Oct 1982 Army service | Veteran argues he submitted evidence (including DD‑214 under alias) sufficient to reopen the discharge‑character determination | RO had not yet finally adjudicated the informal reopening claim and suggests further development may be needed | Remand: RO must adjudicate whether new and material evidence reopens the discharge determination; issue remains open and requires a rating decision |
| Whether new and material evidence reopens service connection for right knee (and whether knee is related to honorable Air Force service) | Veteran contends knee disability is related to July 1979 and Jan 1980 Air Force injuries and seeks reopening | RO previously sent an exam notice to wrong address; also prohibits considering knee injuries from the barred Army period unless the discharge bar is lifted | Remand: obtain proper VA exam (with correct notice), address relation to Air Force injuries, then readjudicate reopening; further development of alias and service records required |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (remand required where RO failed to comply with Board directives)
- Kutscherousky v. West, 12 Vet. App. 369 (appellant may submit additional evidence after remand)
- Cook v. Snyder, 28 Vet. App. 330 (circumstances permitting an additional Board hearing after CAVC remand)