Citation Nr: 1323737 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 07-34 674A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The appellant served on active duty from April 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 administrative decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which found no new and material evidence had been submitted to reopen the appellant's claim on the issue of the character of his discharge. The appellant subsequently initiated and perfected an appeal of this rating determination. In July 2008, the appellant testified personally before a Decision Review Officer, seated at the RO. A transcript of the hearing has been associated with the claims file. In August 2009, the Board reopened the claim and remanded the issue to the RO, via the Appeals Management Center in Washington, DC, for further development. FINDINGS OF FACT 1. The appellant was discharged from his only period of active military service under other than honorable conditions, which was a result of willful and persistent misconduct. 2. The appellant was not insane at the time of the willful and persistent misconduct that was the reason for his discharge from active military service. CONCLUSION OF LAW The appellant was discharged under dishonorable conditions from his only period of active service and is barred from VA compensation and pension benefits. 38 U.S.C.A. §§ 101(2), 5107(b), 5303 (West 2002); 38 C.F.R. §§ 3.102, 3.12, 3.354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 484 (2006), the U.S. Court of Appeals for Veterans Claims (Court) explained that there are five elements of a claim of entitlement to VA disability compensation benefits, as follows: (1) Veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. Here, the first element is at issue, and indeed, the Board finds that this element is not present. Therefore, whether VA met its duty to notify and assist with regard to any of the other elements cannot have resulted in prejudice to the appellant. In October 2006, the RO received the appellant's present claim of entitlement to service connection for disability due to posttraumatic stress disorder (PTSD). In November 2006, the RO sent a letter to the appellant informing him of the evidence necessary to substantiate the veteran status element of his claim. The letter informed him of the kinds of evidence that could substantiate that element and informed him that he could provide the RO with any such evidence or information regarding such evidence. Included in that letter was an enclosure with the text of 38 C.F.R. § 3.12 (2012), the regulation applicable to determining if an individual has veteran status. This letter satisfied VA's duty to notify as to the veteran status element. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of pertinent evidence and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the appellant's service treatment records and administrative records pertinent to his discharge from active service. The appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. As explained in the Merits section of this decision, if a claimant was insane at the time he or she committed the offenses that resulted in that person's discharge under dishonorable conditions, such discharge will not be a bar to the payment of benefits. 38 C.F.R. § 3.354(a). In August 2009, the Board remanded the claim to obtain a medical opinion with regard to whether the appellant was insane during the time of the conduct that resulted in his discharge from active service. This opinion was provided in June 2011. The examiner reviewed and commented on the service records and lay evidence. Significantly, he provided examples from the evidence of record to support his given opinion. As the opinion is thorough and supported by the evidence of record, the Board concludes that the opinion is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, based on the association of recent VA medical treatment center records and Social Security Administration records with the file and the thoroughness of the aforementioned VA June 2012 opinion, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits The appellant's DD Form 214 documents that he was discharged under other than honorable conditions. Previously, in October 1970, a VA administrative decision determined that the appellant's only period of service was dishonorable for VA purposes; therefore, he was not eligible for VA compensation and pension benefits based on that period of service. In September 2006, the appellant filed a claim for VA compensation benefits for PTSD. In the decision on appeal, the RO found that new and material evidence had not been submitted to reconsider the nature of the appellant's discharge. In August 2009, the Board reopened the claim. Statute provides that for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, the United States will pay compensation to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated. 38 U.S.C.A. § 1110 (West 2002). The term "veteran" is defined by statute as a person who service in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(3). The question before the Board is whether the appellant was discharged or released under conditions other than dishonorable for his only period of active service, not whether he was discharged or released under conditions other than honorable. VA regulation provides that discharge or release from service under one of several specified conditions is a bar to payment of benefits unless it is found that the person was insane at the time of committing the offense causing such release or unless otherwise specifically provided. 38 C.F.R. § 3.12(b). The conditions under which a discharge or release is considered to be under dishonorable conditions include a discharge under other than honorable conditions if it is determined that it was issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. Id. The appellant's service personnel records reflect that between April 1967 and his discharge in July 1970, he was investigated for, and found guilty by special court-martial for, violation of various provisions of the Uniform Code of Military Justice (UCMJ). This conviction was for violation of UCMJ, Article 86 for being absent without leave (AWOL) for the period from August 23, 1968 to December 24, 1968. See the appellant's January 23, 1969 Special Court-Martial Order. Additionally, he was convicted by summary court martial for violation of UCMJ, Article 86 for being AWOL for the period from November 3, 1969 to January 26, 1970. See the appellant's February 17, 1970 Summary Court-Martial Order. The appellant was granted compassionate leave from May 14, 1969 to June 20, 1968, to care for his child. Additional service records show that the appellant was considered AWOL from June 21, 1968 to July 16, 1968; August 13, 1968 to August 21, 1968; December 26, 1968 to January 7, 1969; and October 17, 1969 to October 19, 1969. On October 21, 1969, the appellant was given a psychiatric evaluation by a service psychiatrist. The psychiatrist indicated that the appellant had a history of marked social inadaptability prior to and during his tour in the military. The psychiatrist wrote that the appellant's condition was part of a character and behavior disorder due to deficiencies in emotional and personality development. The psychiatrist found no evidence of a mental disease, defect or derangement sufficient to warrant medical disposition. It was further noted that the appellant was capable of distinguishing right from wrong and adhering to the right; the report reflects that the appellant was responsible for his actions and possessed the mental and emotional capacity to understand and participate in legal proceedings. Based on this behavior, the appellant's commanding officers made recommendations that the appellant be released from the Army with an undesirable discharge under the provisions of Army Regulation 635-212. Indeed, on May 13, 1970, CPT A.R.M. specifically recommended that the appellant be issued an undesirable discharge based on the above-listed infractions, as well as the appellant's "constant shirking of duties, undependability, and recurring acts of absence without leave." He further commented on the appellant's "slovenly, appearance, lackadaisical attitude, and record of judicial and nonjudicial punishment." CPT A.R.M. pertinently noted that the appellant had been counseled on 19 occasions, and military superiors and a psychiatrist agreed that "further rehabilitative attempts would be useless." Based on the foregoing pattern of behavior, the appellant was duly discharged effective July 22, 1970 under other than honorable conditions. See the appellant's DD-214. In determining if the appellant's discharge is a bar to compensation and pension benefits, the appellant asks that VA take into consideration that when he was on active duty, his wife was threatening to leave him and take their child. The above evidence reveals that the appellant was discharged in July 1970 for a pattern of persistent and willful misconduct that included failures to report to duty stations and formations, going AWOL on multiple occasions, inefficiency, and ineffectiveness. Furthermore, the appellant's misconduct was clearly not minor, as he was tried and convicted by not one but two separate courts-martial, he exhibited inefficient and ineffectual performance [as expressed by his commanding officers], he was AWOL on numerous occasions, and all attempts at rehabilitation were unsuccessful. The Court has noted that offenses that interfere with one's military duties preclude their performance and are not minor. Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). The Board has considered the appellant's argument that he went AWOL because his wife was threatening to leave him, and he wanted to care for his child. Indeed, the record shows that the appellant was granted compassionate leave from May 14, 1969 to June 20, 1968, to care for his child. However, the fact that the appellant was granted a period of compassionate leave shows that he knew the proper channels to employ to gain assistance dealing with his personal problems and chose not to use them during his periods of AWOL. Additionally, the appellant's service personnel records include no evaluation sheets demonstrating exemplary or even competent performance during his initial years of service, the appellant's commanding officers had a specific opportunity to comment on the appellant's service as a whole, and as discussed in detail above, clearly considered the appellant to be an inefficient and ineffective soldier, and a liability. Accordingly, the evidence of record supports a finding that the appellant was discharged in July 1970 for a pattern of persistent and willful misconduct. As noted above, a discharge due to willful and persistent misconduct, to include those under other than honorable conditions [as in this case], will be considered to have been issued under dishonorable conditions. 38 C.F.R. 3.12(d)(4). Discharge under dishonorable conditions is a bar to payment of VA benefits unless it is found that the service member was insane at the time of the commission of the offense causing such discharge or release. See 38 U.S.C.A. § 5303(b) and 38 C.F.R. § 3.12(b). The appellant has also contended that he suffers from PTSD as the result of his service and that it was this psychiatric condition that resulted in the problems that led to his separation from active service. The Board thus addresses whether there is evidence of insanity that would allow him to receive VA compensation and pension benefits notwithstanding that he was discharged under dishonorable conditions. If it is determined that at the time of the offense that led to a person's discharge that person was insane, then such person shall not be precluded from VA benefits. 38 U.S.C.A. § 5303(a) (West 2002). In determining whether an individual was insane at the time he committed an offense leading to his discharge, such decision will be based on all the evidence procurable relating to the period involved, and applying the VA's definition of insanity. 38 C.F.R. § 3.354(b) (2012). For VA purposes, 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. 38 C.F.R. § 3.354(a) (2012). The phrase "due to a disease" applies to all three circumstances provided in 38 C.F.R. § 3.354(a). It is the time frame during which the behavior occurred that is at issue when determining if the appellant was insane. See Gardner v. Shinseki, 22 Vet. App. 415, 420-21 (2009). In April 2009, the appellant's claims file was submitted to a VA mental examination provider. The examiner reviewed the file and commented on the appellant's age, background, education, and judgment while he was on active duty. He noted that the appellant was not a high school graduate and was 20 while on active duty. He observed that while the appellant served in Vietnam, his wife wrote him letters indicating she was having an affair. He reviewed the post-service medical records and lay statements and then said he could not resolve the matter of the appellant's in-service sanity without resorting to mere speculation. On VA compensation and pension examination in December 2009, the examiner noted the appellant's history of exposure to combat in Vietnam. The appellant recalled killing innocent people, and he saw a commanding officer get killed. The appellant also reported his wife cheating on him while he was on active duty. The examiner opined that right after Vietnam, the appellant's symptoms were severe, and the appellant might have had a significant PTSD reaction during Vietnam in addition to an impulsive underlying personality. In June 2011, the appellant's claims file was submitted to the VA mental examiner who provided the April 2009 opinion. The examiner reviewed his prior opinion and the report of the December 2009 compensation and pension examination. The examiner commented on the statements from the appellant, the appellant's brother, the in-service October 1969 psychiatric examination report, and other treatment records. The examiner opined that it was less likely as not that due to a disease, the appellant had a prolonged deviation from normal methods of behavior during military service. Additionally, the examiner opined that it was less likely as not that due to a disease the appellant's symptoms interfered with the peace of society and was so departed from acceptable standards of the community as to lack the ability to make further adjustments in social customs. To support his given opinions, the examiner relied on the October 1969 in-service psychiatric examination report. He reiterated that the October 1969 in-service psychiatrist said that the appellant was capable of distinguishing right from wrong, and the in-service psychiatrist found no evidence of a psychiatric disorder. The preponderance of evidence is against a finding that the appellant was insane at the time that he engaged in the willful and persistent misconduct described previously. Although the December 2009 VA examiner opined that the appellant may have had a PTSD reaction in Vietnam, the December 2009 examination report does not reflect that the appellant was insane under the definition found at 38 C.F.R. § 3.354(a). Significantly, the June 2011 VA examiner opined that it was less likely than not that the appellant met the VA definition of insanity at the time of his willful and persistent misconduct, and he supported his opinion with evidence from the service records. Additionally, the October 1969 in-service psychiatrist found no evidence of a mental disease, defect or derangement sufficient to warrant medical disposition. The in-service psychiatrist found that the appellant was capable of distinguishing right from wrong and adhere to the right; the report reflects that the appellant was responsible for his actions. The Board finds that the June 2011 VA examiner's opinion and October 1969 service treatment record outweigh the lay statements of record, as the medical reports were created by trained medical professionals who had the education and knowledge to provide competent, credible, objective opinions. The evidence does not show that the appellant exhibited, due to disease, a more or less prolonged deviation from his normal method of behavior; or that he was one who interferes with the peace of society; or who has so departed from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided. For these reasons, the Board concludes that the preponderance of evidence shows that the appellant was discharged under dishonorable conditions, is not a veteran for VA compensation and pension benefits purposes, and that his discharge is a bar to VA compensation benefits. His appeal must therefore be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs