Citation Nr: 1332953 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-27 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether the character of the appellant's discharge is a bar to VA benefits. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Appellant served on active duty from February 1992 to September 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that determined that the character of the appellant's discharge from service is a bar to VA benefits. In July 2011 the Veteran gave testimony at a hearing at the RO before a local hearing officer. The Veteran appeared before the undersigned Veterans Law Judge in January 2012 and delivered sworn testimony via video conference hearing in Louisville, Kentucky. Evidence pertinent to the matter on appeal was received contemporaneously with the Veteran's January 2012 Board video hearing. The Veteran has waived initial RO consideration of this evidence. 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 The appellant served on active duty from February 1992 to September 1996. Due to various periods of being absent without leave (AWOL) equaling 87 days, in December 1994 the appellant was declared to be a deserter. In September 1996 the appellant was given a bad conduct discharge by conviction of a Special-Court Martial. In January 2008 the appellant's discharge was reviewed by the Naval Discharge Review Board and was upgraded to under other than honorable conditions. While upgraded, the appellant's discharge does not remove the bar to VA benefits under 38 C.F.R. § 3.12(c) (2013). While not stated in exact words, the appellant essentially contends that he was insane (as understood by VA regulations) at the time he committed the offenses that resulted in his discharge from service. If the appellant is shown to have been "insane" at the time of the inservice offenses, then he would not be precluded from benefits under laws administered based on the period of service from which he was separated. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). At the January 2012 Board video hearing the appellant's representative noted that the appellant's inservice behavior was due to an inservice back injury, mental problems during service, and suffering from a death in his family at the time. The appellant stated that he was placed on the "Fat Program" during service due to depression from losing his grandfather, who had essentially raised the appellant. A back injury as a result of lifting weights caused the appellant to be placed on limited duty and physical therapy. The appellant said that he was unaware of the fact that he was bipolar and was told by a psychiatrist that bipolar disorder was often misdiagnosed until a person was in their 20s. The events in service caused the appellant to have a mental breakdown. He was also informed that he was self-medicating with marijuana because he was not on any psychotropic medications. He had no disciplinary infractions until his AWOL incidents that started after about three years of service; until that time he had not had any issues with any type of drug use or bad behavior. The appellant had been diagnosed with a personality disorder in service in the midst of exhibiting suicidal tendencies. The appellant was not apprehended by military authorities but had turned himself in voluntarily; he was severely depressed at the time, especially over his grandfather's death. The appellant's grandfather had Alzheimer's and had been wandering off through the woods. Things such as his back injury, being on the "Fat" program, and his grandfather's death began to add up. After turning himself in he was hospitalized for psychiatric issues. He was given medication but he wasn't sure what kind it was. VA regulations provide that an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) 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). VA's General Counsel has discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his normal method of behavior could best be resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). As noted, the appellant has essentially argued that he was "insane" at the time he committed the offenses causing his discharge from service. The appellant has also testified that he had a serious mental illness during service which was far more severe than the personality disorder diagnosed during service. In a June 2010 letter a private physician indicated that the appellant currently had a bipolar disorder that might explain the appellant's erratic behavior dominated by his polysubstance abuse. The Board observes that there is no medical opinion of record to address whether the appellant was insane at the time of going AWOL, utilizing VA's definition of insane. Again, the Board reiterates that VA regulations provide that an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) 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). Thus, the Board finds that the appellant should be provided an appropriate VA mental disorders examination to obtain such an opinion, taking into account the standard necessary to determine if the appellant was insane. Accordingly, the case is REMANDED for the following action: 1. The AOJ should arrange for the appellant to be scheduled for a VA mental disorders examination to determine whether he was insane under VA regulations at the time of his numerous periods of being AWOL during service. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Such review must be noted in the examination report. After the examination, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that: (i) The appellant's periods of AWOL were the result of an acquired psychiatric disability; (ii) A psychiatric disability caused a prolonged deviation from the Veteran's normal behavior; or (iii) interfered with the peace of society; or (iv) caused him to so depart 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 should provide a thorough rationale for these opinions. The examiner should comment on any other relevant medical opinions of record. If the examiner is unable to provide an opinion without resort to speculation, he or she must explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that the Veteran's statements must be considered in formulating the requested opinion. 2. The appellant must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. 38 C.F.R. § 3.655. A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 3. The AOJ also should undertake any other development it determines to be warranted. 4. Following the completion of the above, the AOJ should review the evidence and determine whether the appellant's claim may be granted. If the claim remains denied, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ F. JUDGE FLOWERS 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).