Citation Nr: 1134497 Decision Date: 09/15/11 Archive Date: 09/23/11 DOCKET NO. 08-15 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits, exclusive of health care under 38 U.S.C. Chapter 17. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The appellant served on active duty from September 1979 to October 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 administrative decision of the VA Regional Office (RO) in Hartford, Connecticut. 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 A person seeking VA benefits must first establish that they have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d) (2010). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.12 (2010). A discharge under honorable conditions is binding on the VA as to the character of discharge. 38 C.F.R. § 3.12(a) (2010). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c), and regulatory bars listed in 38 C.F.R. § 3.12(d). 38 C.F.R. § 3.12(d) provides, in part, that a discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d)(4). 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. 38 C.F.R. § 3.12(b). Per VA regulations, an "insane" person is one who: (a) 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 (b) interferes with the peace of society; or (c) 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). The condition of insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence establishing the appellant was insane at the time of the offenses in question leading to an other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In considering whether a Veteran's behavior meets the standard for insanity under 38 C.F.R. § 3.354(a), it is noted that a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. VAOPGCPREC 20-97 (May 22, 1997). The records shows that the appellant had numerous violations during his duty including a non regulation hair cut, failure to go to a place of duty, frequent involvement of discreditable nature and a pattern showing failure to pay just debts. As a result of his misconduct, in September 1980 he was discharged for unfitness under conditions other than honorable due to his "repeated involvement with military authorities and demonstration of financial irresponsibility". An "other than honorable" discharge is not necessarily tantamount to a "dishonorable" discharge. However, a discharge or release from service for one of the following reasons is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude; (4) willful and persistent misconduct (That includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.); and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d) (2010). The appellant claims that his mental status met the criteria for "insanity" during commission of the offenses that led to his discharge. He avers that his behavioral problems during service were due to his dementia. The post-service medical evidence of record includes evidence of multiple diagnoses of dementia. Specifically, in a September 2007 private treatment note, the appellant's private neurologist reported that he had treated the appellant for many years. It was noted that the appellant had a diagnosis of progressive dementia that "may have been pre-existing prior to his military service". The Board finds that a VA medical opinion should be obtained to ascertain whether the appellant was insane at the time of the commission of offenses leading to his discharge. This will assist in resolving the matter of his mental state in connection with the circumstances that procured his discharge. The examiner should render the opinion needed in connection with a detailed review of the claims file, in view of all competent evidence with a bearing on mental status. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). The Board also notes VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c) (2010). While the October 2007 administrative decision noted a June 1980 psychiatric examination, the claims file does not contain this examination or any service treatment records. As the appellant had active service from September 1979 to October 1980, further development is required to attempt to obtain these service treatment records. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2010). Additionally, the record shows that the appellant is receiving Social Security Administration (SSA) disability benefits for his dementia. The evidence of record does not contain the records and examinations considered in the SSA determination and there is no indication such were sought. Accordingly, records and examinations considered in the SSA determination may contain pertinent information, and must be secured. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. The appellant should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the appellant has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the appellant, a notation to that effect should be inserted in the file. The appellant is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO/AMC should make efforts to obtain the appellant's service treatment records from his active from September 1979 to October 1980. The National Personnel Records Center (NPRC) should be contacted as one possible source of the records. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the claims file. 3. Obtain from the SSA a copy of any decision granting or denying claim by the appellant for Social Security disability benefits, as well as copies of any and all medical records or examinations underlying such determination. Associate all obtained records with the claims file. If the records are not obtainable, associate documentation, including negative replies, of VA's efforts to obtain the records and provide the appellant with notice compliant with 38 C.F.R. § 3.159(e). 4. Then, forward the claims file to a VA psychiatric examiner for purpose of determining the appellant's mental status during the time period of commission of the offenses leading to his discharge. The claims folder must be provided to and reviewed by the examiner. The VA examiner is requested to opine whether the appellant was insane at the time of the instances of misconduct during military service. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 5. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ MICHAEL A. PAPPAS 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) (2010).