Citation Nr: 1122137 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 08-32 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether the character of the Veteran's discharge from military service constitutes a bar to VA compensation for the period of service from February 6, 2002 to August 5, 2002. 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and M.D. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran had honorable active service from August 1995 to August 1999 and August 2000 to June 2001. His service from February 6, 2002 to August 5, 2002 resulted in a discharge under other than honorable conditions. These issues come before the Board of Veterans' Appeals (Board) on appeal from two separate decisions of the Department of Veterans Affairs Regional Office (RO) in San Diego, California. In January 2008, the RO found in an administrative decision that the Veteran's service for the period of February 6, 2002 to August 5, 2002, must be dishonorable for VA purposes. In August 2008, a claim for service connection for PTSD was denied. In January 2011, the Veteran testified before the undersigned at a Board hearing. A copy of the transcript has been associated with the file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran was sent a notice letter in November 2007 informing him that because his third period of service (February 6, 2002 to August 5, 2002) was under other than honorable conditions VA had to make a determination on his eligibility for VA benefits stemming from that period of service. The Veteran was given notice of 38 C.F.R. § 3.12 (2007) only. On remand, the Veteran should be told what evidence is needed to substantiate his claim for eligibility for VA benefits, to include any contention that he was insane, within the meaning of the regulations 38 C.F.R. §§ 3.12 and 3.354 (2010), at the time of the offense that led to his discharge from service. At the January 2011 Board hearing, the Veteran stated he attempted to get medical records from his time served in the county jail, but was unsuccessful. (Transcript, p 4, 12-13). The Veteran has stated that he was diagnosed with dissociative amnesia during the event by Dr. Bailey, who treated him while he was in the county jail. (Transcript, p 4.) On remand, VA should attempt to obtain records from the San Bernardino County Sheriff West Valley Detention Center (Transcript, p 17). According to an abstract of judgment and prison commitment from March 2003, the Veteran was convicted of four charges of assault with a deadly weapon. Police reports regarding the incident are in the file. The police reports show that while the Veteran was separated from his wife and living apart from her, he entered her home and attacked her and three others with a screwdriver. The victims sustained serious injuries. The Veteran was apprehended by the police and confessed immediately. The incident occurred on February 28, 2002, days after the Veteran had reenlisted for a third time with the military. In November 2007, the Veteran asserted he had no control over his actions that landed him in prison. He had prior honorable service and was a good Marine; he implied that he was insane at the time of the incident. He submitted his June 2002 statement where he waived his right to an administrative board decision on his discharge. At that time, he did state that he was incarcerated and had a recent evaluation by the facility psychiatrist. He said the psychiatrist told him he had dissociative amnesia at the time of the incident. The Veteran claimed he found his wife having sex with another man. The Veteran stated that his misconduct was not acceptable, but he felt that his career should not be ended due to "an acute medical condition" that he had no control over. The Veteran submitted a copy of an August 2008 application for review of discharge with the BCNR. He also submitted a copy of an April 2008 response to the NDRB. On remand, the AOJ should request determinations from these two entities. A determination is needed regarding the Veteran's sanity at time he committed the four assaults. There is a regulatory character of discharge bar to establishing entitlement for VA benefits; it includes discharge or release from service for an offense involving moral turpitude (generally, the conviction of felony). 38 C.F.R. § 3.12(d)(3) (2010). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge. 38 C.F.R. §§ 3.12(b), 3.354 (2010). VA regulations provide that an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) 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) (2010). In May 1997, VA's then General Counsel discussed the intended parameters of the types of behavior that were defined as insanity under 38 C.F.R. § 3.354(a). Behavior involving a minor episode or episodes of disorderly conduct or eccentricity or behavior that is attributable to a personality disorder is not insanity. VAOPGCPREC 20-97 (May 22, 1997). Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import and consequences of his acts; he or she is a danger to himself or others. Id. He or she is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. Id. The term "constitutionally psychopathic" refers to a condition that may be described as an antisocial personality disorder. The term "become antisocial" refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id. There must be competent evidence establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). The Veteran has the burden of proof. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). Competent medical evidence is required on this question. See Gardner v. Shinseki, 22 Vet. App. 415 (2009). Here, the Veteran submitted an October 2005 state department of corrections (DOC) progress note showing the Veteran reported episodic anger and rage and described episodes of "dissociative amnesia." The Veteran was intact, coherent and rational with no obvious primary process encroachment during the session. The writer stated: "Sounds like he has a frontal temporal lobe seizure disorder." On remand, the AOJ should obtain an opinion as to whether the Veteran was insane on February 28, 2002 when he assaulted his wife and several others with a screwdriver, causing bodily harm. In coming to a conclusion, the examiner should take into account VA's definition of insanity and explain all rationale. The Veteran has also filed a claim for a psychiatric disability, to include PTSD. The file shows the Veteran has complained of symptoms of a psychiatric disability. It is important to note that even if the Veteran is barred from receiving VA compensation from his third period of service, his prior periods of service were honorable and he may receive compensation from disease or injury incurred or aggravated during those periods of service. In a stressor form received in December 2007, the Veteran stated he fell in cold water during a training exercise at Camp Lejeune in January 1998 and saw a fellow Marine accidentally shot in the leg at Camp Lejeune in January 1998. These stressors were not verified by the August 1998 history of the Veteran's unit. A February 1997 service treatment mental health record shows the Veteran was seen by a clinical psychologist (This visit occurred during a period of honorable service). He was referred because he told a peer that he was considering bodily harm to fellow Marines and himself. His background history was briefly reviewed. He was a firing range supervisor. He like his job and the only job-related trouble he'd had was being late once. He was married with children, but his wife had recently left him and gone back to their home state. He said there was a lot of financial stress. His only psychiatric history was going to see a psychiatrist in 1989; he was taken by his mother and he didn't know why. His parents separated when he was young and his mother remarried when he was 11. He was in good health, not on any medication and volunteered as firefighter for the community. A mental status examination was normal except for his verbalization regarding bodily harm to self and others. The diagnostic impression was adjustment disorder with anxiety and a partner relationship problem. Follow up was recommended; the Veteran was to have no access to weapons until he was reassessed in 30 days. Several days later, the Veteran returned to say he had worked things out with his wife. The following month, the Veteran met with the psychologist and had a good meeting. He was working on finances and on a marriage enrichment course with the chaplain. Upon separation in September 1999, no psychiatric complaints or symptoms were noted. The U.S. Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims, and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record reflects other diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). State DOC medical records from July 2003 to September 2008 show varying psychiatric diagnoses with little rationale for each diagnosis. These diagnoses include: Axis I PTSD, depressive disorder, anxiety disorder, intermittent explosive disorder, and a mood disorder. A May 2009 VA mental health record showed a diagnosis of bipolar mood disorder versus organic mood disorder. A history of PTSD was noted and ADHD was to be ruled out. The most recent record in January 2011 shows a diagnosis of bipolar disorder and PTSD. As the Veteran has competently stated symptoms of a psychiatric disability and was shown to have sought psychiatric care in service, he should be given a VA examination to determine the nature and etiology of any psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. First, send the Veteran a corrective notice letter in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002). The Veteran should be told what evidence is needed to substantiate his claim for eligibility for VA benefits, to include any contention that he was insane, within the meaning of the regulations 38 C.F.R. §§ 3.12, 3.354, at the time of the offense that led to his discharge from service. 2. Next, with any necessary assistance from the Veteran, request medical records from the San Bernardino County Sheriff West Valley Detention Center. A negative reply is requested and should be associated with the claims file. 3. Request information regarding the Veteran from the Bureau of Correction of Naval Records and the Naval Discharge Review Board; request copies of all determinations regarding the character of the Veteran's discharge and the records relied upon. A negative reply is requested and should be associated with the claims file. 4. After the above development is completed, schedule the Veteran for a VA examination and opinion to determine the Veteran's mental state on February 28, 2002 when he committed the four assaults and the etiology of any current psychiatric disability. The claims folder and a copy of this Remand must be made available to the examiner in conjunction with the examination. The examiner should indicate whether the Veteran was insane at the time he attacked his wife and others on February 28, 2002. See 38 C.F.R. § 3.354 (2010) as discussed in this document. The examiner must provide a complete rationale for all opinions. Next, for any psychiatric disability diagnosed, the examiner should indicate whether it is likely as not (50 percent probability or greater) related to the Veteran's active service-in coming to this determination the examiner must state the period of service to which the disability is related. The examination report should include the complete rationale for all opinions expressed. 5. Re-adjudicate the Veteran's claims for whether his character of the discharge from service constitutes a bar to VA compensation and pension benefits for the period of service of February 6, 2002 to August 5, 2002 and service connection for a psychiatric disability. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue currently on appeal, as well as a summary of the evidence received since the issuance of the most recent supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).