Citation Nr: 1417328	
Decision Date: 04/17/14    Archive Date: 05/02/14

DOCKET NO.  13-27 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen the issue of whether the appellant's character of discharge from service is a bar to Department of Veterans Affairs (VA) benefits.

2.  Whether the appellant's character of discharge from service is a bar to VA benefits.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The appellant had active military service from September 1967 to April 1970.  The appellant's discharge was characterized as undesirable.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision by the VA Regional Office (RO) in Philadelphia, Pennsylvania.  

In January 2014, the appellant testified during a videoconference hearing before the undersigned Acting Veterans Law Judge.  A transcript of that hearing is of record.

In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the case.  A review of the documents in the electronic files reveals a transcript of the January 2014 hearing.  The remaining documents are either irrelevant or duplicative of the evidence in the paper file.

The issue(s) of whether the appellant's character of discharge from service is a bar to VA benefits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In an unappealed October 1970 administrative decision, the RO determined that the appellant was discharged for willful and persistent misconduct, which was considered to have been issued under dishonorable conditions.  Therefore, it was determined that the appellant's discharge was under dishonorable conditions and it was a bar to all VA benefits based on his period of service from September 1967 to April 1970. 

2. The evidence received since the October 1970 administrative decision relates to an unestablished fact necessary to substantiate an exception to the bar from VA benefits.


CONCLUSIONS OF LAW

1.  The October 1970 administrative decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160 (2013).

2.  New and material evidence has been received since the October 1970 administrative decision to reopen the issue of whether the appellant's character of discharge from service is a bar to VA benefits.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  Given the Board's favorable disposition of the petition to reopen the issue of whether the appellant's character of discharge from service is a bar to VA benefits, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal have been accomplished.

New and Material Evidence

The Board has jurisdiction to address a new and material issue and to reach the underlying claim de novo.  A final rating decision may be reopened when new and material evidence is presented or secured with respect to a disallowed claim.  38 U.S.C.A. § 5108.  New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Shade, 24 Vet. App. at 118.

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).

In an October 1970 administrative decision, the RO determined that the appellant's undesirable discharge from service in April 1970 was under dishonorable conditions and it was a bar to VA benefits.  The RO noted that the appellant was on an unauthorized absence from June 2, 1969 to July 22, 1969; from July 23, 1969 to January 15, 1970; and from February 24, 1970 to March 11, 1970.  He requested a discharge rather than a trial by Court Martial.  He had a prior conviction by Summary Court Martial for an unauthorized absence from August 10, 1968 to September 8, 1968, and violation of a lawful general order for being in an off-limits area.  He also had two non-judicial punishments for unauthorized absence, failure to go to an appointed place of duty, and failure to obey a lawful command of an officer to go to an appointed ambush site.  The appellant had amassed 277 days lost time as a result of his unauthorized absences.  The RO determined that the appellant was discharged for willful and persistent misconduct, which was considered to have been issued under dishonorable conditions.  Therefore, it was determined that the appellant's discharge was under dishonorable conditions and it was a bar to all VA benefits based on his period of service from September 1967 to April 1970.

The evidence submitted since the final October 1970 administrative decision includes January 2014 hearing testimony that constitutes new and material evidence sufficient to reopen the issue because it was not previously of record and it indicates that the appellant had been diagnosed with posttraumatic stress disorder (PTSD) and that he had psychiatric symptoms prior to his periods of unauthorized absences approximately three to four months before his discharge from service.  His testimony raises the issue of whether he was insane at the time of his unauthorized absences leading to his undesirable discharge.  Accordingly, the issue is reopened. 


ORDER

New and material evidence has been received to reopen the issue of whether the appellant's character of discharge from service is a bar to VA benefits; the petition to reopen is granted. 


REMAND

During the January 2014 hearing, the appellant testified that he had been diagnosed with PTSD and that he had psychiatric symptoms prior to his periods of unauthorized absences approximately three to four months before his discharge from service.  His testimony raises the issue of whether he was insane at the time of his unauthorized absences leading to his undesirable discharge.  

The Board observes that there is no medical opinion of record to address whether the appellant was insane at the time of the offenses leading to his discharge, utilizing VA's definition of insanity.  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 at the time of the offenses resulting in his discharge from service.

The appellant also indicated that he was treated for psychiatric symptoms by a private physician, Dr. L. (initials used to protect the appellant's identity), as identified in the hearing transcript.  See hearing transcript, p. 15.  The RO/AMC should seek to obtain authorization from the appellant to obtain these records.

In addition, during the hearing, the appellant stated that he may have applied for a character of discharge upgrade to a discharge under honorable conditions by the service department Discharge Review Board in approximately the 1980s.  The RO/AMC should contact the service department Board of Correction of Military Records to determine whether the appellant applied for a character of discharge upgrade and obtain any documentation pertaining to any application.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should contact the service department Board of Correction of Military Records to determine whether the appellant applied for a character of discharge upgrade, to specifically include any applications submitted in the early 1980s.  Any documentation pertaining to any such application should be obtained and associated with the claims file.

2.  The RO/AMC should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for any psychiatric symptoms, to specifically include private treatment from Dr. L. (as identified in the January 2014 hearing transcript).

After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. 

3.  The RO/AMC should arrange for the appellant to be scheduled for a VA mental disorders examination by a psychiatrist or psychologist to determine whether he was insane under VA regulations at the time of his numerous periods of unauthorized absences from June 1969 through March 1970. 

The appellant's claims folder and any pertinent evidence in Virtual VA not contained in the 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 unauthorized absence were the result of an acquired psychiatric disability;

(ii) A psychiatric disability caused a prolonged deviation from the appellant'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.  38 C.F.R. § 3.354(b). 

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 appellant is competent to report injuries and symptoms, and that the appellant's statements must be considered in formulating the requested opinion.

4.  The RO/AMC also should undertake any other development it determines to be warranted.  Following the completion of the above, the RO/AMC 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.


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. 2013).




______________________________________________
H. SEESEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs