Citation Nr: 0314838 Decision Date: 07/07/03 Archive Date: 07/10/03 DOCKET NO. 97-23 566A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Whether the character of the appellant's discharge constitutes a bar to VA benefits. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The appellant and three observers ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The appellant served on active duty from January 1994 to February 1996 and had a period of active duty for training from September 1991 to January 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 administrative decision by the VA RO in New York, New York. REMAND Briefly, the appellant received an other than honorable discharge from the Army in February 1996 because of actions that reportedly included two unauthorized absences and the use of cocaine. The appellant contends that she suffered from symptoms of a bipolar disorder while in the military-which, in turn, negatively impacted her ability to perform her duties and caused her to act in the manner that eventually led to her other than honorable discharge. She also claims that severe marital difficulties affected her psychologically, as well, as further justification for her behavior. In the May 2003 VA Form 646, the appellant's representative contended that her misconduct in service was not willful, because of her mental illness, most notably her bipolar disorder which was diagnosed within 2-1/2 months after her discharge. Therefore, according to the representative, it is reasonable to consider her actions were a residual of the undiagnosed mental illness and her resulting inability to think clearly and consider the consequences of her actions. If it is established the veteran was insane at the time of the commission of an offense leading to a court-martial, discharge, or resignation, she shall not be precluded from the receipt of VA benefits. See 38 U.S.C.A. § 5303(b) (West 2002). 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/her 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/she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he/she resides. 38 C.F.R. § 3.354(a) (2002). However, 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). In that opinion, VA's General Counsel in May 1997 discussed the intended parameters of the types of behavior, which were defined as insanity in 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity did not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his/her normal method of behavior could best be resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. It was stated that the phrase "interferes with the peace of society" in the regulation referred to behavior, which disrupted the legal order of society. It was also stated that the term "become antisocial" in the regulation referred to the development of behavior, which was hostile or harmful to others in a manner, which deviated sharply from the social norm, and which was not attributable to a personality disorder. It was indicated that the reference in the regulation to "accepted standards of the community to which by birth and education" an individual belonged required consideration of an individual'' ethnic and cultural background and level of education. It was stated that the regulatory reference to "social customs of the community" in which an individual resided required assessment of an individual's conduct with regard to the contemporary values and customs of the community at large. The opinion also held that behavior, which is generally attributable to a substance-abuse disorder, does not exemplify the severe deviation from the social norm or the gross nature of conduct, which is generally considered to fall within the scope of the term insanity and therefore does not constitute insane behavior. The Board notes that the 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). There still must be competent evidence, though, establishing that the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. See Zang v. Brown, 8 Vet. App. 246, 254 (1995). If insanity is an issue, VBA's Adjudication Manual requires that the case be developed concerning this before a decision is made on whether the appellant's discharge was due to her willful misconduct. See M21-1, Part IV, para. 11.05b. This development has not been completed, however. In this regard, when, as here, a rating agency must determine whether an appellant was insane at the time she committed an offense leading to her discharge, it must base its decision on all of the evidence procurable relating to the period involved, and apply the definition in section 3.354(a). 38 C.F.R. § 3.354(b) (2002). It appears that the majority of the relevant evidence necessary to make this determination has been obtained, including the appellant's service medical records, service personnel records, and records pertaining to the disciplinary action taken against her for her actions that led to her other than honorable discharge. Since, however, there also is evidence that she was suffering from a psychiatric disorder at the time of the commission of at least some of the infractions that lead to her discharge, a VA medical opinion should be obtained indicating whether she was insane when she committed those infractions. See 38 U.S.C.A. § 5103A(d) (West 2002). 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 her discharge. See M21-1, Part IV, para. 11.05c. Following completion of the above, regardless of whether 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 her willful misconduct. See M21-1, Part IV, para. 11.05d. Additionally, while the case is in remand status, the RO should provide appropriate notice of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5100 et. seq. (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002) Accordingly, this case is remanded to the RO for the following development and consideration: 1. The RO should request that the appellant 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 her claim. 2. After completion of the above, the RO should have an appropriate VA physician review the appellant's medical history (particularly during and immediately after service) and provide an opinion indicating whether she was insane at that time when she committed the various offenses that ultimately precipitated her discharge from the military under other than honorable conditions. See 38 C.F.R. § 3.354. This medical opinion should discuss the intended parameters of the types of behavior that are defined as insanity in 38 C.F.R. § 3.354(a). Specifically, the examiner's definition of insanity must be interpreted in light of the commonly accepted VA definition of "insanity." VAOPGCPREC 20-97. The examiner should discuss the extent to which the appellant lacked control of her faculties, the ability to make decisions, or judge right from wrong; the examiner should also discuss the extent to which the appellant was unable to understand her actions or take responsibility for them. 3. After completing 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 her 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 her discharge from military service constitutes a bar to VA benefits. See M21-1, Chapter IV, para. 11.05d. The appellant has the right to submit additional evidence and argument concerning the claim the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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 2002) (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. _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2002).