Citation Nr: 1301062 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-05 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence was submitted to reopen a claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Traskey, Counsel INTRODUCTION The appellant had active service from August 1967 to August 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO). The appellant requested a hearing in connection with the current claim and was afforded a hearing before a decision review officer in February 2008. The appellant testified at that time and the hearing transcript is of record. The appellant also testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in September 2009. The hearing transcript is of record. The appellant's claim was previously before the Board in July 2011 and remanded at that time for additional evidentiary development, to include obtaining outstanding records from the Social Security Administration. The requested development was completed as directed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issue of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Board issued a decision in February 1977 in which it determined that the appellant's character of discharge was a bar to payment of VA educational assistance benefits. 2. The RO issued a rating decision in April 2005 in which it determined that the appellant was not insane at the time he committed the offenses which led to a general court martial and a discharge under other than honorable conditions. The RO also determined that the appellant's character of discharge was a bar to payment of VA compensation benefits. The appellant was notified of the April 2005 decision and provided his appellate rights, but did not perfect an appeal. 3. The evidence submitted since the April 2005 rating decision includes additional Social Security Administration and private treatment records, lay statements, and hearing testimony. 4. The evidence submitted since the April 2005 rating decision was not previously of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits, with VA's assistance. CONCLUSION OF LAW Evidence submitted to reopen the claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits, is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is taking action favorable to the appellant by reopening the claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the appellant. By way of history, the appellant applied for educational assistance benefits in October 1975. The RO issued an administrative decision in December 1975 in which it determined that the appellant's other than honorable discharge was a bar to VA benefits. In particular, it was noted that the appellant was convicted by general court martial in June 1969 for disobeying a lawful order and striking an officer. According to the RO, the evidence did not show that the appellant was not mentally responsible, unable to distinguish right from wrong, or unable to adhere to right at the time of the offenses that led to the general court martial. In September 1969, the appellant's court martial sentence was reduced to a bad conduct discharge with forfeiture of all pay and confinement for one year. Prior to the issuance of the RO's administrative decision, the appellant was notified in October 1975 that he could submit evidence or argument in support of his claim. The appellant did not reply to this request for evidence or argument. The appellant was notified of this decision and provided his appellate rights. He perfected an appeal. In particular, the appellant asserted that, at the time of the offenses that led to his general court martial and discharge from service under other than honorable conditions, he was having multiple family problems at home and the military would not process his request for a hardship discharge. He further asserted that he committed the offenses because of tension and strain caused by his family problems. See October 1976 substantive appeal. The Board subsequently issued a decision in February 1977 in which it determined that the appellant's character of discharge was a bar to payment of VA educational assistance benefits. Specifically, the Board found that the appellant's discharge under conditions other than honorable by reason of the sentence of a general court martial precluded receipt of educational assistance benefits. This decision is final. 38 U.S.C.A. § 7104. In May 2004, the appellant requested service connection for several disabilities. He also requested review of the circumstances surrounding his discharge under conditions other than honorable. The RO issued a rating decision in April 2005 in which it determined that the appellant was not insane at the time that he committed offenses which led to a general court martial and a discharge under other than honorable conditions. The RO also determined that the appellant's character of discharge was a bar to payment of VA compensation benefits. The appellant was notified of the April 2005 decision and provided his appellate rights. He submitted a notice of disagreement in May 2005. The RO issued another administrative decision in November 2005 consistent with the findings of the April 2005 rating decision. The RO also issued a statement of the case in January 2006, but the appellant did not perfect an appeal. As set forth in 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See also Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, if new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim." Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). Consequently, "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Here, the record shows that no new and material evidence was received within one year of the April 2005 RO rating decision. Moreover, there was no substantive appeal or statement which could reasonably be construed to be a timely filed substantive appeal. Thus, the April 2005 rating decision is final. 38 U.S.C.A. § 7105. Most recently, in May 2007, the appellant sought to reopen a claim of whether his character of discharge constituted a bar to payment of VA compensation benefits. The RO issued the June 2008 rating decision in which it appeared to reopen the appellant's claim, but deny it on the merits noting that there was no evidence showing that the appellant was insane at the time that he committed the offenses which led to a general court martial and a discharge under other than honorable conditions. The RO confirmed and continued the previous denial on the basis that the appellant's character of discharge was a bar to payment of VA compensation benefits. See also 38 C.F.R. § 3.12 (2008). The appellant was notified of this decision and provided his appellate rights. He timely perfected this appeal. Although the RO appeared to find that new and material evidence had been submitted to reopen the claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits, RO decisions are not binding on the Board. Consequently, the Board must first decide whether new and material evidence has been received to reopen the appellant's claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the April 2005 RO rating decision is the last final disallowance with respect to the claim to reopen, the Board must review all of the evidence submitted since that time to determine whether the claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits should be reopened and readjudicated on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (finding a standard that would require reopening if the newly submitted evidence along with the other evidence of record, combined with VA assistance raised a reasonable possibility of substantiating the claim). The evidence of record at the time of the April 2005 RO rating decision consisted of service treatment records, service personnel records, and hearing testimony. Service personnel records reflected that the appellant had more than one Article 15 violation for being absent without leave and/or disobeying a lawful order from a commanding officer. In May 1968, the appellant, his mother, and his wife submitted statements requesting a financial hardship discharge. In October 1968, the appellant willfully disobeyed a lawful order from an officer and struck a different officer with his fist while stationed in the Republic of Vietnam. The appellant was subsequently transferred to the disciplinary barracks at Fort Leavenworth, Kansas for confinement. A psychiatric evaluation conducted at that time showed no evidence of a psychotic thought disorder. The diagnosis was chronic, moderate inadequate personality manifested by mediocre adjustment to civilian and military life, immaturity, impulsivity, excessive dependency needs, and an inability to work continuously toward group goals. A follow-up psychiatric examination was unchanged. A general court martial was convened in January 1969, the appellant pleaded guilty, and he was sentenced to a dishonorable discharge, total forfeitures, and confinement for five years. The convening authority reduced confinement to one year, but otherwise approved the sentence. The Army Board of Review issued an opinion in July 1969 in which it noted that the appellant desired a punitive discharge so that he could get out of the Army as soon as possible. The Board of Review otherwise affirmed the appellant's sentence. The appellant subsequently appeared before a clemency board in August 1969. The appellant was again advised of the disadvantages of a dishonorable discharge, but declined restoration. Clemency was denied and further confinement was indicated as the appropriate rehabilitative measure. See also September 1969 special court martial order. The appellant's DD Form 214 described his character of service as under other than honorable conditions. The appellant submitted a statement in July 1974 about the circumstances of his general court martial. He provided similar testimony before a decision review officer in May 1976. The Social Security Administration subsequently found the appellant to be "disabled" due to recurrent, moderate major depression as well as depressive-type schizoaffective disorder. See July 2000 administrative decision. The effective date of this determination was October 31, 1999. The appellant provided additional testimony before a decision review officer in April 2005. Specifically, the appellant stated that he was depressed and frustrated at the time that he struck the officer. According to the appellant, he was newly married with a young child and little money, grieving his stepfather's recent death, concerned for his single mother, and had recently survived a deadly attack on his unit while stationed in Vietnam. As noted above, striking an officer along with the appellant's failure to obey a lawful order from a different officer, led to a general court martial and discharge under other than honorable conditions. The evidence submitted subsequent to the April 2005 RO rating decision includes additional Social Security Administration and private treatment records, lay statements, and hearing testimony. For example, private psychiatric treatment notes dated May 1975 from the Malcolm Bliss Mental Health Center (MBMHC) showed that the appellant was admitted for care and observation after a bout of uncontrollable screaming and shouting. The appellant's history of disorderly conduct in service, as well as his dishonorable discharge, was noted. The appellant drank only occasionally, but admitted use of "acid" approximately one month prior to admission. A mental status examination showed evidence of psychosis, among other symptoms. The initial impression was mania versus acute schizophrenic episode. The discharge diagnosis was manic depressive illness, manic, versus schizoaffective. The appellant was voluntarily readmitted to MBMHC in July 1986 after breaking into an aunt's house. According to the aunt, the appellant abused PCP for two weeks prior to admission. The appellant stated that he occasionally smoked marijuana, but denied other drug use, including PCP. The appellant's history of a bad conduct discharge from service was noted, as was the fact that he received two gunshot wounds in 1976 when someone attempted to break into his neighbor's house. A mental status examination was positive for delusions, among other symptoms. The diagnosis was PCP intoxication, rule out bipolar affective disorder, manic type. The appellant was admitted to Alexian Brothers Hospital in September 1997 for additional psychiatric care after reporting symptoms of depression with suicidal thoughts. The appellant reported symptoms of depression since service, but noted that his stepfather's recent death may have worsened his depression. It was also noted that the appellant's mother died approximately one year prior to his admission. The appellant's past medical history was significant for psychiatric hospitalization at MBMHC in the 1980s. However, the appellant's former wife also indicated that the appellant was treated there in the 1960s. The appellant reported regular marijuana use, tried cocaine, and drank occasionally. The diagnosis was major depression with psychotic features, rule out bipolar disorder; cannabis dependence; and alcohol and cocaine abuse. The Axis II diagnosis included personality disorder, not otherwise specified, with paranoid, passive aggressive and antisocial features. The appellant received additional psychiatric care at St. John's Mercy Medical Center in October 1999 after reporting subjective complaints of depression and homicidal ideation towards his boss and girlfriend. The appellant also reported financial and family stress, auditory hallucinations, and passive wishes to "not wake up." The appellant's bad conduct discharge from service and the circumstances surrounding this incident were noted. The diagnosis was major depressive disorder with psychotic features, rule out schizoaffective disorder. Posttraumatic stress disorder was also diagnosed. The appellant was afforded a private psychiatric examination in connection with his application for Social Security Disability benefits in December 1999. The appellant's past military service was noted as was a period of psychiatric hospitalization in 1972. Following a mental status examination, the examiner diagnosed schizoaffective disorder, depressive type. The appellant expressed the opinion in May 2005 that he had a mental disorder in service, to include schizoaffective disorder and/or depression, when he willfully disobeyed a lawful order from an officer and struck a different officer with his fist. The appellant also stated that he was under "great stress" at that time because his financial hardship discharge was not being processed. See also June 2007 statement. In February 2008, the appellant testified that prior to the incidents which resulted in a general court martial, he attempted to get a hardship discharge due to family and financial situations. He also testified that he survived a deadly attack on his unit while stationed in Vietnam. The appellant's representative indicated that the appellant had a predilection for mental problems prior to service, and essentially, that he had persistent psychological and emotional problems since service. A childhood friend testified that the appellant frequently skipped classes and the appellant acknowledged getting expelled from high school for fighting. The representative also expressed the opinion that the appellant was insane at the time of the offenses which led to the general court martial and discharge under other than honorable conditions. Similarly, the appellant testified in September 2009 before the undersigned AVLJ that prior to the October 1968 incidents, he was newly married with a young child and little money, grieving his deceased father, concerned for his ill mother, frustrated about the slow processing of his hardship discharge, and had recently survived a deadly attack on his unit while stationed in Vietnam. Immediately prior to the incidents, the appellant noted that he received distressing mail from home and "lost it" when someone was "hollerin' in my face." According to the representative, the appellant had a long history of instability and "mental status" dating back to high school. The representative also argued that VA should accept the dictionary definition of "insanity." The appellant's claim of whether his character of discharge constitutes a bar to payment of VA compensation benefits was previously denied on the grounds that he was not insane at the time that he committed offenses which led to a general court martial and a discharge under other than honorable conditions. The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim will be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade, 24 Vet. App. at 117. Moreover, a claim will be reopened if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The evidence described in detail above, to include additional private treatment and Social Security Administration records, lay statements, and hearing testimony, is newly submitted evidence and suggests that when combined with VA assistance, a reasonable possibility exists of substantiating the claim. Shade, 24 Vet. App at 116-18; Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In particular, the evidence suggests a long history of psychiatric symptoms and the possibility of hospitalization for psychiatric treatment in the 1960s, which would have been immediately after the Veteran's discharge from service. This evidence potentially suggests that the Veteran may have had psychiatric problems during service. Accordingly, the claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits, is reopened. ORDER New and material evidence having been submitted, the appeal to reopen a claim of whether the appellant's character of discharge constitutes a bar to payment of VA compensation benefits, is granted to this extent only. REMAND Service connection may be granted to a veteran for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). 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 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). Accordingly, a discharge or release from active service under conditions other than dishonorable is generally a prerequisite to entitlement to VA pension or compensation benefits. See 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a) (2012). 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) (West 2002) and regulatory bars listed in 38 C.F.R. § 3.12(c), (d). Benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c) - (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court-martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12(c), (d) 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 or release or unless otherwise specifically provided. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). Thus, "insanity" is a defense to the statutory and regulatory bars for VA benefits. VA regulations define an insane person as 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) (2012). When the question is whether an individual was insane at the time of an offense leading to his court martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved, and apply the definition 38 C.F.R. § 3.354(a). See 38 C.F.R. § 3.354(b). Notably, mental illness is not identical to "insanity." Beck v. West, 13 Vet. App. 535, 539 (2000). In addition, there need be no causal connection between the insanity and the misconduct, but the acts leading to the discharge and the insanity must be concurrent. Id. There still must be competent evidence, though, 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). As noted above, the evidence of record submitted since the April 2005 RO decision included additional private treatment and Social Security Administration records, lay statements, and hearing testimony. In particular, the evidence submitted reflected longstanding psychiatric problems contemporaneous to the appellant's discharge from service. The appellant had also reported psychiatric symptoms which either began in or shortly after service. The appellant's former wife also indicated in September 1997 that the appellant received psychiatric treatment at MBMHC shortly after discharge from service in the 1960s. Additional private treatment records suggested that the appellant also received psychiatric treatment in 1972. While some of the records from MBMHC are associated with the claims file, records from the period(s) of time in question are not. Accordingly, on remand, the RO must contact the appellant and afford him the opportunity to identify any outstanding treatment records not associated with the claims file, to include any and all records from MBMHC. Additionally, the appellant must be afforded a VA examination on remand to determine whether he was "insane" as defined by 38 C.F.R. § 3.354 at the time of the offenses that led to his general court martial and discharge from service under other than honorable conditions. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the appellant and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, including but not limited to any and all records from the Malcolm Bliss Mental Health Center. Particular attention is directed to any private treatment records generated during the 1960s to 1972. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The appellant and his representative must then be given an opportunity to respond. 2. After the above development is completed, the appellant must be afforded a VA examination by a psychiatrist or psychologist to determine whether he was "insane" as defined by 38 C.F.R. § 3.354 at the time of the offenses that led to his general court martial and discharge from service under other than honorable conditions. The claims file and all relevant records in Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must integrate the previous psychiatric findings to obtain a true picture of the nature of the appellant's psychiatric status at the time of the offenses that led to his general court martial and discharge from service under other than honorable conditions. Following a review of the evidence of record, an examination of the appellant, and with consideration of the appellant's statements and any lay statements of record, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the appellant was "insane" as defined by 38 C.F.R. § 3.354 at the time of the offenses that led to his general court martial and discharge from service under other than honorable conditions. Please note: 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. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 4. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the appellant's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the appellant and his representative. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ M.N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs