Citation Nr: 1332072 Decision Date: 10/04/13 Archive Date: 10/21/13 DOCKET NO. 08-17 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the character of the Appellant's discharge from service is a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Michael Viterna, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Appellant served on active duty from July 1972 to October 1974. He received an other than honorable discharge for this period of active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 administrative decision issued by the VA Regional Office (RO) in Winston-Salem, North Carolina, which determined that the Appellant's other than honorable discharge for his period of active duty from July 1972 to October 1974 was a bar to VA benefits. This matter also is before the Board on appeal from a May 2008 rating decision in which the RO found that the Appellant was not insane at the time that he committed the offenses which resulted in his other than honorable discharge for his period of active duty. A Travel Board hearing was held at the RO in February 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In May 2010, the Board denied the Appellant's claim. The Appellant, through his attorney, and VA's Office of General Counsel, filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court) seeking a remand of the Board's May 2010 decision. In April 2011, the Court granted the Joint Motion and vacated and remanded the Board's May 2010 decision. In September 2009 and in August 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the RO/AMC to schedule the Appellant for a Travel Board hearing in its September 2009 remand. As noted above, this hearing occurred in February 2010. Pursuant to the Court's April 2011 decision granting the Joint Motion, the Board subsequently directed the RO/AMC in its August 2011 remand to attempt to obtain the Appellant's complete service records. These records subsequently were associated with the Appellant's claims file. The Board also directed the RO/AMC to attempt to obtain transcripts of the Appellant's in-service trials and convictions by Summary Court Martial and Special Court Martial. The RO/AMC attempted to obtain this information from the National Personnel Records Center in St. Louis, Missouri (NPRC) which notified VA in October 2012 that these records were not available. The Board also directed the RO/AMC to attempt to obtain the Appellant's complete Social Security Administration (SSA) records. These records were associated with the claims file in February 2012. The Board finally directed the RO/AMC to schedule the Appellant for VA examination to determine whether he was insane at the time that he committed the offenses which resulted in his other than honorable discharge from active service. This examination occurred in December 2012. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. During his military service, the Appellant was absent without leave (AWOL) from January 16, 1973, to March 6, 1973, March 9, 1973, to March 23, 1973, April 30, 1973, to June 5, 1973, March 15, 1974, to March 19, 1974, April 10, 1974, to April 12, 1974, April 13, 1974, to July 9, 1974, July 26, 1974, to August 26, 1974, and from August 27, 1974, to September 27, 1974, for a total of 252 days. 2. The Appellant was arraigned and tried before a Summary Court Martial in March 1973; the Court found him guilty of unauthorized absence or AWOL from January 16, 1973, to March 5, 1973. 3. The Appellant was arraigned and tried before a Special Court Martial in June 1973; the Court found him guilty of unauthorized absence or AWOL from April 30, 1973, to June 4, 1973. 4. While pending trial for a third AWOL charge in September 1974, the Appellant requested an undesirable discharge for the good of the service. 5. In October 1974, the Appellant's request for an undesirable discharge was approved and he was discharged from active duty under other than honorable conditions. 6. There are no compelling circumstances to warrant the Appellant's frequent AWOL periods during his active duty. 7. The Appellant's discharge from active service under other than honorable conditions for the period of active duty from July 11, 1972, to October 3, 1974, is considered dishonorable. 8. The record evidence suggests that the Appellant was not insane at the time he committed the offenses which led to his discharge under other than honorable conditions. CONCLUSION OF LAW The character of the Appellant's discharge for his period of active duty from July 1972 to October 1974 is a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 5303 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(d), 3.3, 3.4, 3.5, 3.12, 3.301, 3.354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter issued in November 2006, VA notified the Appellant of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Where the issue involves the character of an Appellant's discharge, proper notice must inform the claimant of the evidence needed to establish Veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). The November 2006 letter noted other types of evidence the Appellant could submit in support of his claim. The Appellant also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Appellant be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although appropriate Dingess notice was not provided to the Appellant, the Board finds that such notice is not required in this case because it is not relevant to the currently appealed claim concerning the character of the Appellant's discharge from active service. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Appellant was not informed specifically of what is needed to establish Veteran status in the November 2006 letter. This information subsequently was provided to the Appellant in a May 2008 Statement of the Case when his claim was readjudicated. Based on a review of the Appellant's own statements, the Board also finds that he had actual knowledge of the evidence needed to establish Veteran status. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (finding that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). The Appellant submitted a written statement in September 2006 in which he contended that he had been "insane" at the time that he committed the offenses which led to his other than honorable discharge from active duty. As will be explained below in greater detail, the evidence supports finding that the character of the Appellant's discharge from active duty is a bar to VA benefits. Any failure of the RO to notify the Appellant under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Appellant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to an Appellant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, although the Appellant was not provided with complete pre-adjudication VCAA notice, his claim was readjudicated after he was provided with appropriate VCAA notice. Thus, the Board finds that there is no prejudice to him in proceeding with this decision. See Bernard , 4 Vet. App. at 394. And any defect in the timing or content of the notice provided to the Appellant and his attorney has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Appellant in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Appellant's claims file; he has not contended otherwise. The Appellant's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Appellant's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issue as involving the character of the Appellant's discharge and his eligibility to receive VA benefits. The Appellant was assisted at the hearing by an accredited representative from The American Legion, his then-service representative. The representative and the VLJ then asked questions to ascertain whether the Appellant had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative specifically asked the Appellant about the facts and circumstances surrounding his other than honorable discharge from service. Moreover, neither the Appellant nor his attorney has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Appellant, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Appellant's representative and the VLJ asked questions to draw out the evidence concerning the facts and circumstances of the Appellant's other than honorable discharge from service, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Appellant's hearing constitutes harmless error. In October 2012, the NPRC notified VA that transcripts of the Appellant's Summary Court Martial and Special Court Martial in 1973 were not available. In cases where service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA must provide an explanation to an Appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). The claims file also contains an April 2007 letter from the U.S. Department of the Navy, Office of the Judge Advocate General (OJAG), in which OJAG notified VA that a review of its records from 1969-1979 "reveals no record of a court proceeding for [the Appellant] that resulted in a punitive discharge." OJAG also informed VA that it was U.S. Navy policy that records of courts-martial "not resulting in punitive discharges will be retained for 15 years and then destroyed." OJAG concluded that records pertaining to the Appellant's courts-martial "would have destroyed in accordance with" this records retention policy. Having reviewed the record evidence, the Board concludes that it is reasonably certain that transcripts of the Appellant's courts-martial do not exist and further efforts to obtain these records would be futile. Pursuant to the Joint Motion, the Appellant was provided with a VA examination in December 2012 which addressed the issue of whether he was insane at the time that he committed the offenses that led to his other than honorable discharge from service. An addendum to this examination was obtained in February 2013 which addressed the issues raised in the Joint Motion concerning the Appellant's mental status during his period of active duty. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiner, this examination report plus addendum sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examination of record is adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Appellant and no further action is necessary to meet the requirements of the VCAA. Law and Regulations In order to qualify for VA benefits, a claimant must demonstrate that he was a Veteran. See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). The term 'discharge or release' includes: (1) retirement from the active military, naval or air service, and (2) the satisfactory completion of the period of active military, naval or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(18). A discharge or release to reenlist is a conditional discharge if it was issued during World War I, World War II, the Korean conflict, the Vietnam era, or peacetime service. 38 C.F.R. § 3.13(a). Typically, the entire period of service constitutes one period of service and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). A person may be considered to have been unconditionally discharged or released from active military, naval, or air service during one of the above timeframes, however. 38 C.F.R. § 3.13(c). The requirements for a constructive unconditional discharge are: (1) the person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service, (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment, and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. Id. If these requirements are met, then the entire period of service does not constitute one period of service. 38 C.F.R. § 3.13(b). This has been interpreted to suggest that the initial obligated period of service and the reenlistment period beyond the initial obligated period may be considered distinct periods of service when the last period of service is terminated under dishonorable conditions. See VAOGCPREC 8-2000, fn. 2 (July 25, 2000). It is dishonorable when a person is discharged or released under one of the following conditions: (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 person requested his 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, unless there were compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c). Additionally, a discharge or release is considered to have been under dishonorable conditions if it was because of one of the following offenses: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(d). An offense involving moral turpitude generally includes being convicted of a felony. 38 C.F.R. § 3.12(d). "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). Willful and persistent misconduct includes a discharge under other than honorable conditions determined to be issued because of willful and persistent misconduct. Willful and persistent conduct excludes a discharge because of a minor offense, however, if service otherwise was honest, faithful, and meritorious. 38 C.F.R. § 3.12(d). The Court has held that an offense that "interfere[s] with [the] Appellant's military duties, indeed preclude[s] their performance... [does] not constitute a minor offense." Stringham v. Brown, 8 Vet. App. 445 (1995). The Court also has held repeatedly that an AWOL constitutes willful and persistent misconduct and not a minor offense. See Struck v. Brown, 9 Vet. App. 145 (1996) (affirming Board finding that two and a half months of AWOL out of nine months of service was willful and persistent misconduct); Stringham, 8 Vet. App. at 445 (upholding Board finding that four AWOL violations and failure to obey lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming Board finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct, and, by analogy, persistent misconduct.) The Board is not required to accept the Appellant's statements that he had compelling circumstances for a prolonged period of AWOL. See Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003) (holding that adjudicator permitted to look at totality of evidence rather than merely accepting whatever rationale claimant might offer for periods of AWOL). As it prevents attainment of Veteran status, a discharge under any of the conditions listed in 38 C.F.R. § 3.12(c) or offenses pursuant to 38 C.F.R. § 3.12(d) generally is a bar to VA benefits. 38 C.F.R. § 3.12(b). There are two instances when this is not the case, however. The first instance is an exception to the general rule for a person who is found to have been insane at the time he committed the act(s) precipitating his discharge or release. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b); see also Zang v. Brown, 8 Vet. App. 246 (1995). Establishing a causal connection between the insanity and the act(s) is not required. Struck, 9 Vet. App. at 145; Helige v. Principi, 4 Vet. App. 32 (1993); VAOPGCPREC 20-97 (May 22, 1997). The burden is on the Appellant to submit sufficient evidence of his insanity. Stringham, 8 Vet. App. at 445. The Court has held that mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535 (2000). The predicate for insane behavior for VA purposes generally is a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, he is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. Id. Therefore, an insane person for VA purposes is one who: (1) 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; (2) interferes with the peace of society; or (3) 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. The term 'constitutionally psychopathic' refers to a condition that may be described as an antisocial personality disorder. VAOPGCPREC 20-97. Behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not constitute prolonged deviation from a person's normal method of behavior. Id. The phrase 'interferes with the peace of society' refers to behavior which disrupts the legal order of society. Id. The term 'become antisocial' refers to the development of behavior that was hostile or harmful to others in a manner which deviated sharply from the social norm and that was not attributable to a personality disorder. Id. The second instance involves setting aside the bar to VA benefits imposed under 38 C.F.R. § 3.12(d), but not 38 C.F.R. § 3.12(c), when certain requirements are met by a discharge review board established under 10 U.S.C. § 1553 in issuing an upgraded honorable or general discharge on or after October 8, 1977. 38 C.F.R. § 3.12(g). If the same certain requirements are satisfied, the bar to VA benefits also is removed when an upgraded honorable or general discharge is issued under: (1) the President's directive of January 19, 1977, initiating further action with respect to Presidential Proclamation 4313 of September 16, 1974; or (2) the Department of Defense's Special Discharge Review Program effective April 5, 1977; or (3) any discharge review program implemented after April 5, 1977, and not made applicable to all persons administratively discharged or released from active military, naval, or air service under other than honorable conditions. 38 C.F.R. § 3.12(h). Service department findings are binding and conclusive upon VA for purposes of establishing an Appellant's service and VA has no authority to alter such findings. 38 C.F.R. § 3.203(a). See Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997), and Manlincon v. West, 12 Vet. App. 238 (1999). VA also has no authority to alter an Appellant's discharge classification; his or her only recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). Factual Background The Appellant's available service personnel records show that he was AWOL from January 16, 1973, to March 6, 1973, March 9, 1973, to March 23, 1973, April 30, 1973, to June 5, 1973, March 15, 1974, to March 19, 1974, April 10, 1974, to April 12, 1974, April 13, 1974, to July 9, 1974, July 26, 1974, to August 26, 1974, and from August 27, 1974, to September 27, 1974, for a total of 252 days. The Appellant was arraigned and tried before a Summary Court Martial in March 1973 on a charge of unauthorized absence or AWOL. The Court found him guilty of unauthorized absence or AWOL from January 16, 1973, to March 5, 1973. He subsequently was arraigned and tried before a Special Court Martial in June 1973 on another charge of unauthorized absence or AWOL. The Court found him guilty of unauthorized absence or AWOL from April 30, 1973, to June 4, 1973. While pending trial for a third unauthorized absence or AWOL charge in September 1974, the Appellant requested an undesirable discharge for the good of the service. In October 1974, the Appellant's request for an undesirable discharge was approved and he was discharged from active duty under other than honorable conditions. The Appellant's available service treatment records show that, at his enlistment physical examination in June 1972 just prior to the beginning of his active duty in July 1972, clinical evaluation was normal. The Appellant also was psychiatrically normal. He denied all relevant pre-service history. No separation physical examination was available for review. In April 2006, K.L., M.D., stated that the he had reviewed the Appellant's service personnel records and service treatment records. Dr. K.L. also stated that the Appellant's depression "started after he entered [the] Marine Corps at age 17. He is diagnosed with bipolar disorder, type II." Dr. K.L. opined that the Appellant's "condition is likely related to" his service. In May 2006, T.D., M.D., stated that the Appellant had been diagnosed as having bipolar disorder/obsessive compulsive disorder. In a December 2006 statement, the Appellant stated that he received beatings and was "spit on in the face for no reason" during basic training. He essentially contended that his psychiatric problems began as a result of difficulties he experienced during basic training. He also contended that he went AWOL due to his severe mental problems caused by basic training. In a March 2007 statement, the Appellant asserted that he "was separated and/or 'forced-out' by a discharge-in-lieu of courts martial by the commanding officer of my unit." He also asserted that there were "compelling circumstances to warrant the prolonged unauthorized absence" during active service, specifically chronic bipolar disorder. In a June 2008 statement, the Appellant asserted that he "was forced out of the Marine Corps on October 3, 1974" by his commanding officer. He also asserted that, contrary to information in his service personnel records, he "was never offered counsel, never spoke to counsel, never was advised by counsel." He asserted further that he had bipolar disorder at the time of his undesirable discharge from service but was denied access to medical care or treatment for this illness. He recapitulated his experiences during basic training A review of the Appellant's outpatient treatment records from Dr. K.L. dated between 2008-2012 shows that he has been diagnosed as having and treated for with a variety of psychiatric disabilities, to include bipolar disorder. These records make only limited reference to the Appellant's other than honorable discharge from service. For example, in April 2008, the Appellant "reports when he was young he had 6 days' AWOL because his fiancée at that time was pregnant and then he was led to believe that he had to leave the Marine Corps." A review of the Veteran's voluminous Social Security Administration (SSA) records, which were date-stamped as received by the RO in May 2012, shows that he was awarded SSA disability benefits for bipolar disorder and obsessive compulsive disorder. These records do not address whether the Appellant was insane at the time that he committed the offenses which led to his other than honorable discharge from service. They relate instead to his post-service treatment for psychiatric problems and his application for SSA disability benefits. On VA mental disorders Disability Benefits Questionnaire (DBQ) in December 2012, the Appellant's complaints included difficulty with social anxiety, anger management problems, irritability, mood swings, anxiety, and depression. The VA examiner reviewed the Appellant's claims file, including his service treatment records and post-service VA treatment records. The VA examiner stated: [The Appellant] has had long-standing difficulties adjusting to society beginning in childhood. He came from an abusive family and states that he left home to join the military because he was afraid if he did not he would kill his father because of his father's abuse...He continues to have difficulty with social anxiety as well as his anger management issues. He has had five failed marriages...He also does not socialize because of his social anxiety. This examiner concluded that the Appellant had "moderate to severe psychosocial maladjustment." The Appellant "has not worked in many years because of his low stress tolerance, irritability, anxiety, depression, [and] mood swings." A suicide attempt was noted. "He reports persistent paranoid ideation and occasional auditory hallucinations of a negative nature." Mental status examination of the Appellant showed a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, difficulty in understanding complex commands, impaired judgment and abstract thinking, and disturbances of motivation and mood. The VA examiner opined that it was at least as likely as not that the Appellant "was suffering from significant mental health issues...while he was on active duty secondary to his childhood experiences as well as possible beginnings of his bipolar disorder." This examiner also opined that it was at least as likely as not that the Appellant's "poor judgment and impulsive behavior which manifested among other things as several periods of [AWOL] was secondary to mental disease which was present prior to the time he joined the military and which continued while he was on active duty." This examiner stated that he could not answer the other questions asked of him without resorting to speculation. The Axis I diagnoses were anxiety disorder, not otherwise specified, with features of PTSD, which was "at least as likely as not related to his childhood experiences of parental abuse and had its origin prior to his military service," obsessive compulsive disorder, and bipolar disorder, not otherwise specified. With respect to the Appellant's Global Assessment of Functioning (GAF) score, the examiner stated: [The Appellant] has three Axis I diagnoses which mutually exacerbate each other. No specific level of dysfunction can be assigned to any of them, independent of the other, without resorting to speculation. None appear to be directly related to [the Appellant's] military service it appears at least as likely as not that at least his anxiety disorder predates his admission to the military. In a February 2013 addendum to the December 2012 VA mental disorders DBQ, the VA examiner reviewed VA's definition of insanity (outlined above) and stated that the Appellant did not exhibit a more or less prolonged deviation form the normal method of behavior during his AWOL periods or any other time during his active duty. He also stated: It is clear that [the Appellant] had a long-standing pattern of social mal-adjustment beginning before he was admitted to the military. It appears that he had been chronically mentally ill...[R]egarding 'deviation from his normal method of behavior,' it appears that his normal method of behavior was one of poor societal adjustment and difficulty with authority. His episodes of AWOL do not appear to be inconsistent with his 'normal method of behavior.' In answering the question of whether the Appellant interfered with the peace of society during his service, the examiner stated: [T]here is no specific documentation...which reflects such behavior but it certainly would be expected given his long standing pattern of such before and after military service of this type of behavior. Going AWOL does not seem to be an example of interfering with the peace of society but again this is not a medical question which can be addressed by this physician with medical certainty, thus the previous comment that no conclusion could be [made] without resorting to mere speculation. If this examiner must given an opinion in this regard it would seem that it was at least as likely as not that [the Appellant] did not 'interfere with the peace of society during military service.'...Even if [the Appellant] did 'interfere with the peace of society' while on active duty, this itself does not constitute evidence of insanity since it was not necessarily an irresistible product of mental disease. In answering the question of whether the Appellant became anti-social or departed from the accepted standards of his community of birth and education as to lack adaptability to adjust to the community where he currently resides, the VA examiner stated: [The Appellant] clearly showed a long-standing pattern of behavior which shows lack of adaptability to societal norms but, as to whether or not he could have the capacity to make such adjustment, cannot be determined with medical certainty. He did not 'become' antisocial or so departed from the [accepted] standards of the community to [which] by birth or education he belong[ed] as to lack the adaptability to make further adjustment of the social customs of the community in which he resides. He clearly had difficulty in this area prior to entering military service. If any opinion is to be given by this examiner, it must be suspected that [the Appellant], while impaired by his mental illness, was not so impaired that he could not conform to normal social customs. There is evidence of ongoing mental illness before, during, and after his period of military service. However, it is the opinion of this examiner that the severity of the mental illness was not so profound that it would cause [the Appellant] to be unable in all circumstances to conform to social customs or expectations of his superior officers. A[n Appellant] with his particular type of psychopathology could, for instance, request help from medical or psychological professional if he found it difficult to adjust to military life or, in other ways, address his lack of suitability to military service other than simply going AWOL. There is no evidence in the record that [the Appellant] was incapable of conforming his behavior to the expectations of society or his superior officers while he was on active duty status although it may have been difficult for him to do so because of his mental illness. In May 2013, the Appellant submitted 2 statements from his siblings regarding his mental status before and after his active duty. These statements are to the effect that, after basic training, the Appellant experienced anxiety, social isolation, and paranoia. Analysis The Board finds that the preponderance of the evidence supports a finding that the character of the Appellant's discharge is a bar to VA benefits. The Appellant has contended that he was insane at the time that he went AWOL and committed offenses which led to his discharge from active duty in October 1974 under other than honorable conditions. The record evidence does not support the Appellant's assertions regarding either his mental status during service or the facts and circumstances surrounding his other than honorable discharge from service. It shows instead that the Appellant was not insane at the time he committed the offenses which led to his other than honorable discharge which is a bar to VA benefits. The Appellant does not contend, and the evidence does not show, that he was not AWOL for a total of 225 days during his sole period of active service between July 1972 and October 1974. Nor does he contend that he did not receive a dishonorable discharge from service in October 1974 in lieu of a third court-martial for additional unauthorized absences. And it is well-settled that AWOL constitutes willful and persistent misconduct. See Struck, 9 Vet. App. at 145, Stringham, 8 Vet. App. at 445, and Winter, 4 Vet. App. at 29. Accordingly, the evidence of record supports a finding that the Appellant was discharged in October 1974 for a pattern of persistent and willful misconduct. 38 C.F.R. § 3.12(d). As also 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 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); 38 C.F.R. § 3.12(b). The record evidence persuasively suggests that the Appellant was not insane at the time he committed the offenses (unauthorized absence or AWOL) that resulted in his other than honorable discharge. The December 2012 VA examiner diagnosed the Appellant as having anxiety disorder, not otherwise specified, with features of PTSD, obsessive compulsive disorder, and bipolar disorder, not otherwise specified. This examiner also opined that the Appellant's psychiatric disability existed prior to service and was at least as likely as not related to "his childhood experiences of parental abuse and had its origin prior to his military service." This examiner addressed each prong of the definition of insanity in his February 2013 addendum to the December 2012 VA examination report and concluded that the Appellant was not insane at the time that he committed the offenses which led to his other than honorable discharge from active duty. First, the VA examiner opined in his February 2013 addendum that the Appellant did not exhibit a more or less prolonged deviation form the normal method of behavior during his AWOL periods or any other time during his active duty. Second, the VA examiner opined, " Going AWOL does not seem to be an example of interfering with the peace of society." This examiner also stated that it was at least as likely as not that the Appellant "did not interfere with the peace of society" during his active duty. This examiner noted that, even if the Appellant had "'interfere[d] with the peace of society' while on active duty, this itself does not constitute evidence of insanity since it was not necessarily an irresistible product of mental disease." Third, the VA examiner opined that the Appellant "did not 'become' antisocial or so departed from the [accepted] standards of the community to [which] by birth or education he belong[ed] as to lack the adaptability to make further adjustment of the social customs of the community in which he resides." He noted that, although the Appellant "was impaired by his mental illness, was not so impaired that he could not conform to normal social customs." This examiner also noted that "the severity of the [Appellant's] mental illness was not so profound that it would cause [the Appellant] to be unable in all circumstances to conform to social customs or expectations of his superior officers." This examiner finally concluded that the evidence did not suggest "that [the Appellant] was incapable of conforming his behavior to the expectations of society or his superior officers while he was on active duty status although it may have been difficult for him to do so because of his mental illness." The Board acknowledges that, in the December 2012 VA examination and the February 2013 addendum, the VA examiner stated that some of the questions regarding whether the Appellant was insane at the time he committed the offenses which led to his other than honorable discharge from active duty could not be answered with medical certainty. The Court recently held in Jones v. Shinseki, 23 Vet. App. 382 (2010), that, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Id. at 389-90. See also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that speculative opinion is not legally sufficient to establish service connection). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). Having reviewed both the December 2012 VA examination and the February 2013 addendum, the Board finds that the VA examiner sufficiently explained the reasons for his inability to answer the questions posed with medical certainty. This examiner also supported his conclusions with an analysis that could be weighed against contrary opinions, was "based on sufficient facts and data," and considered "all procurable and assembled data." Thus, the Board also finds that the December 2012 and February 2013 addendum are adequate for VA rating purposes. The Board acknowledges that, in April 2006 opinion, Dr. K.L. opined that the Appellant's "condition is likely related to" his service. It appears that Dr. K.L.'s opinion is based on the Appellant's inaccurately reported in-service history, particularly in light of the Appellant's subsequent statements on outpatient treatment in April 2008 with Dr. K.L. that "when he was young he had 6 days' AWOL because his fiancée at that time was pregnant and then he was led to believe that he had to leave the Marine Corps." The record clearly shows that the Appellant had 252 days of AWOL during active service. There also is no indication in the available service records that any of the Appellant's AWOL was related to a pregnant fiancée. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed Dr. K.L.'s April 2006 opinion and the Appellant's other outpatient treatment records from his treatment with Dr. K.L., the Board finds that this opinion was based upon an inaccurate factual predicate in the record and is not supported by "clinical data or other rationale." Thus, the Board also finds that Dr. K.L.'s April 2006 opinion is less than probative on the issue of whether the Appellant was insane at the time that he committed the offenses which led to his other than honorable discharge from service. In summary, the Board finds that the evidence persuasively suggests that the Appellant was not insane at the time that he committed the offenses which led to his other than honorable discharge from service. The Board recognizes that the Appellant has submitted multiple lay statements in support of his assertion that he was insane during his 252 days of AWOL which led to his other than honorable discharge from service. While the Board has considered these statements, they are not probative especially in light of the persuasive medical evidence demonstrating that the Appellant was not insane at the time that he committed the offenses which led to his other than honorable discharge. Because the Appellant was discharged from service under other than honorable conditions, and because there were no compelling circumstances to vitiate the finding that his frequent periods of AWOL during active duty constituted willful and persistent misconduct and fully supported his other than honorable discharge from service, the Board concludes that the character of the Appellant's discharge is a bar to VA benefits. ORDER The character of the Appellant's discharge for his period of active duty from July 1972 to October 1974 is a bar to VA benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs