Citation Nr: 1404875	
Decision Date: 02/04/14    Archive Date: 02/14/14

DOCKET NO.  11-14 543	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Whether the Appellant's character of discharge is a bar to VA benefits.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 




INTRODUCTION

The Appellant served on active duty from January 2006 to July 2007. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision in December 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In March 2013, the Appellant appeared at a hearing before the undersigned Veterans Law Judge.  

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. 


REMAND

The Appellant was discharged from active duty "under other than honorable conditions" for misconduct due to drug abuse. 

At the hearing in March 2013, the Appellant raised the defense of insanity as interpreted for the purpose of VA benefits under 38 C.F.R. § 3.354.

As the RO has not addressed 38 C.F.R. § 3.354 in the first instance and as the evidence of record is insufficient to decide the appeal under 38 C.F.R. § 3.354, further development under the duty to assist is needed. 








Accordingly, the case is REMANDED for the following action. 

1.  Make another request for the Appellant's complete in-patient records from the Portsmouth Naval Hospital.  

If the records do not exist or further attempts to obtain the records would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e).

2.  After the above development, adjudicate the claim, addressing 38 C.F.R. § 3.354.  If necessary obtain a medical opinion.  If the determination is adverse to the Appellant, furnish the Appellant and her representative a supplemental statement of the case and return the case to the Board

The Appellant has the right to submit additional evidence and argument on the claim the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). 

The claims 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.  38 U.S.C.A. §§ 5109B, 7112.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals








Department of Veterans Affairs