Citation Nr: 1306534 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-37 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether the Veteran's period of service from July 26, 1986, through January 31, 1990, was honorable for VA purposes. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from July 1983 to January 1991, for which he received a discharge under other than honorable conditions. An August 1990 VA administrative decision held that the Veteran's discharge for the period from July 26, 1983, through July 25, 1986, was considered to be honorable for VA purposes. His service for the period from July 26, 1986, through January 31, 1990, was considered to have been terminated by a discharge under dishonorable conditions for VA purposes. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, that denied service connection for posttraumatic stress disorder (PTSD) and asthma. The rating decision explained that the Veteran's military service for the period from July 26, 1986, through January 31, 1990, was not honorable for VA purposes. 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 preliminary review of the record indicates that this claim requires additional development. The record reflects that the Veteran requested a discharge for the good of the service to avoid a court martial for several offences. These consisted in part of wrongfully appropriating a lawn mower in July 1989. In addition, on or about April 20, 1989, the Veteran wrongfully appropriated a military police vehicle that was the property of the United States government; stole two sheets of plywood that were the property of the United States government; solicited a specialist to help him steal the plywood; and orally communicated to a specialist certain indecent language. At some undetermined time, the Veteran without proper authority willfully damaged light bulbs and ammunition supply point light fixtures that were the property of the United States government by shooting a sling-type weapon. The Veteran contends that this behavior was the result of great stress, which he has described in correspondence to VA, during a January 2010 Informal Decision Review Officer (DRO) Conference (Conference), and during a March 2011 hearing before the undersigned Veterans Law Judge. He contends that he in fact had PTSD at that time of his behavior. During the January 2010 Conference, the Veteran also indicated that he received mental health treatment while stationed in Italy. The report of the Conference reflects that the parties agreed that the Veteran would submit information regarding the location and dates of mental health treatment while stationed in Italy. Thereafter, the Veteran submitted service treatment records showing that in October and November 1988 he received counseling from the Social Work Service at the United States Army Hospital (USAH) at Vicenza. These records additionally show that the Veteran's case record was maintained at the Social Work Service. The Veteran specifically requested that VA obtain more complete mental health records. The Board notes that the Veteran's service treatment records also reflect that he received counseling in August 1989 from the Social Work Service at the USAH at Vicenza, and that his case record was maintained at the Social Work Service. The Veteran's service treatment records associated with the record before the Board do not include any records from the Social Work Service at the USAH at Vicenza. However, despite the evidence of missing inservice mental health treatment records and the action agreed upon during the Conference, the DRO (and VA in general) failed to make any effort to obtain the missing records. Statutes and regulations require that VA assist a claimant by obtaining medical records that are necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. There are also heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In addition, the relevant VA regulation provides that a determination with respect to insanity must be based "on all the evidence procurable relating to the period involved.... (italics added)." 38 C.F.R. § 3.354(b) (2012). The Board finds that the Veteran's inservice mental health treatment records are procurable evidence relating to the period involved that must be obtained. Similarly, VA General Counsel has stated that [t]he determination as to whether a particular behavior constitutes insanity for purposes of section 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case.... We believe that case-by-case adjudication is particularly appropriate for assessing the extent by which an individual's behavior must deviate from his or her normal behavior.... (italics added). VAOPGCPREC 20-97. The Board finds that the Veteran's inservice mental health treatment records are necessary for the required consideration of the circumstances of the Veteran's particular case as well as the required case-by-case adjudication. Accordingly, the case is REMANDED for the following action: 1. Using all possible sources, obtain copies of all available records of the Veteran's mental health treatment at the Social Work Service at the USAH at Vicenza. Document the efforts made to obtain these records along with any negative responses. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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. 2012). _________________________________________________ MILO H. HAWLEY 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) (2012).