Citation Nr: 0202863 Decision Date: 03/27/02 Archive Date: 04/04/02 DOCKET NO. 98-02 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the character of the appellant's discharge from military service constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant, Mother, and Friend ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The appellant had active military service from May 1992 to August 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1997 administrative decision from the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The appellant's representative has made multiple contentions on evidentiary and procedural grounds that this case should be remanded back to the RO, rather than internally be developed by the Board, as is now permissible. See 67 Fed. Reg. 3,009 (January 23, 2002) (to be codified as amended at 38 C.F.R. § 19.9). The Board concurs that this case must be remanded to the RO for additional development because the type of development required is the kind that, at least in part, must be performed at the RO level. See Chairman's Memorandum 01-02- 01 (2002). As will be discussed in detail below, the issue of insanity with respect to the character of discharge claim has been raised by the appellant. This is a threshold issue that the RO must decide prior to making a determination on the issue of character of discharge. See M21-1, Part IV, para. 11.05c. Therefore, as the RO has not sufficiently addressed this issue, it must be remanded. In this regard, the Board notes that it has the discretion to develop matters internally or to remand them to the RO. 67 Fed. Reg. 3,099, 3,104 (January 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)). Briefly, the appellant received an other than honorable discharge from the Navy in August 1993 resulting from actions by the appellant including three unauthorized absences and the use of marijuana. The appellant has contended that he suffered from latent symptoms of multiple sclerosis while he was in the military. He has indicated that these symptoms negatively impacted his ability to perform his duties. As a result, he asserted that his character came to be questioned by his shipmates. He reported being threatened and physically attacked on several occasions. He also indicated that his superiors began giving him more responsibilities than other shipmates, further aggravating his condition that caused him to act in the manner that lead to his other than honorable discharge. The appellant has indicated that the impact of his physical condition on his ability to perform also affected him psychologically. He reported seeking psychological treatment. The record documents such treatment, including a diagnosis of dysthymic disorder. The record also documents a pre-service history of treatment for "endogenous" depression by Dr. BB. The appellant has contended that these problems in combination lead to the behavior (unauthorized absences and marijuana use) which lead to his discharge. In this regard, the appellant reported that he smoked marijuana in the hope that he would be caught and get discharged. In the February 2002 Informal Brief the appellant's representative, in pertinent part, contended that his conduct was not willful, indicating that it was due to his mental state as triggered by his physical condition, most notably multiple sclerosis. It was argued that the RO made an impermissible medical conclusion in the April 1999 Supplemental Statement of the Case (SSOC) by finding the appellant to not be insane at the time of the commissioned acts that lead to his discharge, and indicated that a medical opinion should be obtained to address this issue. It was also contended that the appellant was not provided with the laws and regulations pertaining to insanity. In essence, the above contentions are made for the purpose of establishing that the character of the appellant's discharge (other than honorable) should not be a bar to VA benefits because the appellant was insane at the time of the commission of the offenses that lead to such a discharge; i.e., his discharge was not due to his own willful misconduct. Briefly, a discharge or release from service under certain conditions is considered to have been issued under dishonorable conditions unless it is found that the person was insane at the time of commission of the offenses causing such release or discharge. 38 C.F.R. § 3.12(b). If it is established that the veteran was insane at the time of the commission of an offense leading to a court-martial, discharge, or resignation, such person shall not be precluded from the receipt of VA benefits. See 38 U.S.C.A. § 5303(b) (West 1991). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a) (2001). 38 C.F.R. § 3.354(a) must be interpreted in light of the commonly accepted definition of "insanity." VAOPGCPREC 20- 97 (citing to Black's Law Dictionary and Dorland's Illustrated Medical Dictionary). The Board notes that insanity exception to the bar to VA benefits only requires that insanity be shown to exist at the time of the commission of the offense leading to discharge; there need not be a causal connection between the insanity and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996) (citing Helige v. Principi, 4 Vet. App. 32, 34 (1993). However, there still must be competent evidence establishing that the appellant was insane at the time of his offenses leading to his other than honorable discharge. See Zang v. Brown, 8 Vet. App. 246, 254 (1995). In light of the above-noted contentions, the Board is of the opinion that the appellant and his representative have sufficiently raised the issue of insanity by contending that his actions leading to discharge were not willful but the result of his mental state resulting from his physical condition. See M21-1, Part IV, para. 11.05a. If insanity is an issue, VBA's Adjudication Manual requires that the case be developed as to the insanity issue before a decision is made as to the issue of whether the appellant's discharge was due to his willful misconduct. See M21-1, Part IV, para. 11.05b. The Board is of the opinion that such development is not complete. In this regard, when a rating agency is concerned with determining whether an appellant was insane at the time he committed an offense leading to discharge, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in section 3.354(a). 38 C.F.R. § 3.354(b) (emphasis added). It appears that the majority of relevant evidence has been obtained, including service medical records, service personnel records, and records pertaining to the disciplinary action taken against the appellant for his actions that lead to his other than honorable discharge. The only medical evidence identified by the appellant that has not been obtained are pre-service psychiatric treatment records from Dr. BB (see March 1993 service medical records). Service medical records document the appellant's report of treatment by this individual for depression one year prior to service. This evidence should be obtained since it pertains to his psychiatric impairment at issue. See id. In addition, in September 1996 the appellant submitted a request to the Department of the Navy that his discharge be changed from other than honorable to a medical discharge. The claims folder does not include the response from the Navy, but the appellant testified during the January 1998 hearing that his request had been denied. Tr., p. 20. However, it was also indicated that the decision had been appealed. Id. On remand, the RO should request from the Department of the Navy Board for Correction of Naval Records any determinations and other relevant evidence concerning the appellant's request for an upgrade of his discharge from other than honorable. 38 U.S.C.A. § 5103A(b) (West Supp. 2001); 38 C.F.R. § 3.354(b); M21-1, Part IV, para. 11.05b. Finally, because there is evidence that the appellant was suffering from a psychiatric disorder at the time of the commission of at least some of the infractions that lead to his discharge, a VA medical opinion should be obtained that assesses whether the appellant was insane at the time such infractions were committed. See 38 U.S.C.A. § 5103A(d) (West Supp. 2001). After completion of the above development, the RO should refer the case for rating activity disposition of the insanity issue. In essence the RO should make a specific finding as to whether the veteran was insane at the time of the commission of the offenses that lead to his discharge. See M21-1, Part IV, para. 11.05c. Following completion of the above, whether or not insanity is established, the RO must prepare a formal decision pertaining to the character of the appellant's discharge; i.e., whether it was the result of his willful misconduct. See M21-1, Part IV, para. 11.05d. On remand, the RO should also perform any additional notification or development action required under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000); see also 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). In this regard, the VCAA, among other things, eliminates the concept of a well-grounded claim and supercedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions); see generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The VCAA provides that, upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (West Supp. 2001)). The Act also requires the Secretary to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A § 5103A (West Supp. 2001)). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA § 7(a), 114 Stat. 2096, 2099-2100 (2000). See generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In addition, VA has recently published new regulations, which were created for the purpose of implementing many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide a claimant who files a substantially complete application for VA benefits. These new regulations also provide guidelines regarding VA's duties to notify claimants of necessary information or evidence and to assist claimants in obtaining evidence. These new regulations, which in pertinent part are effective as of the date of enactment of the VCAA, interpret and implement the mandates of the statute, "and do not provide any rights other than those provided by the VCAA." 66 Fed. Reg. 45,629. Accordingly, this case is remanded for the following: 1. The RO should request the appellant to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim. The RO should specifically ask the appellant to identify and/or submit any pertinent records pertaining to his psychiatric condition at the time of his commission of the offenses that lead to his other than honorable discharge. In addition, the RO should obtain records of psychiatric treatment by Dr. BB (as noted in the service medical records). 38 U.S.C.A. § 5103A(b) (West Supp. 2001); Kutscherousky v. West, 12 Vet. App. 369 (1999). After securing any necessary authorization or medical releases, the RO should make reasonable efforts to obtain legible copies of the appellant's complete treatment records from all sources adequately identified whose records have not previously been secured. 38 U.S.C.A. § 5103A(b), (c) (West Supp. 2001)); 66 Fed. Reg. 45,620, 45,630- 45,631 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). All information which is not duplicative of evidence already received should be associated with the claims file. 2. The RO should request the Department of the Navy, Board for Corrections of Naval Records, to send any determinations and other pertinent information concerning the appellant's request for an upgrade of his discharge from other than honorable to medical. The efforts to obtain any records from a Federal department or agency shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3)) (West Supp. 2001). 3. If the RO is unable to obtain any of the relevant records sought, it shall notify the appellant that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C.A § 5103A(b)(2)); 66 Fed. Reg. 45,620, 45,631 (to be codified at 38 C.F.R. § 3.159(e)). 4. After completion of the above, the RO should obtain a VA advisory opinion from an appropriate medical specialist to carefully review the records pertaining to the appellant's medical history (particularly during service) and its relationship, if any, to the circumstances leading to his other than honorable discharge. The claims file and a separate copy of this remand should be made available to and reviewed by the medical specialist prior and pursuant to submission of a medical advisory opinion report. The medical specialist should annotate the medical advisory opinion report that the claims file was in fact made available for review. The examiner is to review the appellant's entire military history, including all service medical records, all personnel records, and any other pertinent evidence, including relevant pre and post-service medical records. After completing review as specified above, the examiner must provide the following: (a) Discuss the appellant's pre-service, in-service, and post-service medical and psychiatric history; (b) Discuss the appellant's in-service disciplinary history, from his enlistment to discharge; (c) In light of the above-mentioned medical and disciplinary history, answer the following: What is the likelihood that the appellant was insane at the time(s) he committed the offenses resulting in his other than honorable discharge? (See 38 C.F.R. § 3.354). 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report(s) to ensure that it is responsive to and in complete compliance with the directives of this remand, and if it is not, the RO should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the RO must review the claims file to ensure that any other notification and development action required by the VCAA, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (see 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001)) are fully complied with and satisfied. See also 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). 6. After undertaking any necessary development in addition to that specified above, the RO should make a specific finding as to whether the appellant was insane, under 38 C.F.R. § 3.354, at the time of the commission of the offenses leading to the appellant's discharge from service. See M21-1, Chapter IV, para. 11.05c. Once this finding has been made, the RO should prepare a formal decision readjudicating the issue of whether the character of the appellant's discharge from military service constitutes a bar to Department of Veterans Affairs (VA) benefits. See M21-1, Chapter IV, para. 11.05d. If the benefit requested on appeal is not granted to the appellant's satisfaction, the RO should issue a SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the issue currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2001).