Citation Nr: 1522970 Decision Date: 06/01/15 Archive Date: 06/16/15 DOCKET NO. 13-28 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether the character of the appellant's discharge is a bar to the award of VA benefits. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The appellant had active service with the United States Navy from July 1989 to February 1993. He was discharged from service under "other than honorable conditions." This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 administrative decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The appellant was discharged from active military service in February 1993 under "other than honorable conditions." 2. The evidence is at least in a state of relative equipoise in demonstrating the appellant was insane at the time he committed the offenses that led to his discharge from service. 3. The medical evidence relates the Veteran's current diagnosis of PTSD to his corroborated in-service stressors, and also relates his alcohol dependence to his PTSD. CONCLUSIONS OF LAW 1. The character of the appellant's discharge is not a bar to VA benefits. 38 U.S.C.A. §§ 101, 107, 5303 (West 2014); 38 C.F.R. §§ 3.1, 3.12, 3.354 (2014). 2. The criteria to establish service connection for PTSD with associated alcohol dependence are met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Here, the dispositions in this decision are fully favorable to the appellant. Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. II. Historical Background The appellant entered service in July 1989. His service personnel records document numerous service awards, to include the Humanitarian Service Medal for his direct participation in the California Earthquake Relief Operation in 1989; a Navy Unit Commendation Ribbon for his meritorious service in 1991 as a member of the Arabian Gulf Battle Force; and a Navy Achievement Medal in support of Operation Desert Storm. A report covering the time period from February to December 1991 reflects that the appellant had completed the requirements course for petty office- third class. His service treatment records show that he had been found to be intoxicated in April 1991 after sustaining multiple lacerations during a fight. The record shows that the appellant went AWOL from July 10, 1991, through July 18, 1991. He was assessed with substance dependency in July 1991; a two-week outpatient program and attendance at three AA meetings were recommended. In July 1991, he received a commanding officer's non-judicial punishment for AWOL. Among the punishments awarded was reduction in rank to E-2, but that was suspended for six months. He had to forfeit $300 for one month and was assigned to 45 days of restriction/extra duty. From October 15, 1991, through October 20, 1991, the appellant went AWOL. In December 1991, he received another commander's non-judicial punishment due to AWOL. The previous suspension of reduction in rank was vacated. According to a February 1992 Comprehensive History of Alcohol and Drug Use Report, the appellant indicated that he had his first beer at age 10 and regular use continued a few years later. After enlisting in the Navy, he noted that his pattern of alcohol use gradually increased. In June 1992, it was determined that the appellant met the DSM-III-R criteria for psychoactive substance dependence. Random urinalyses conducted in July and August 1992 were positive for methamphetamines and "THC." In August 1992, the appellant received a third commander's non-judicial punishment for AWOL (five specifications), missing movement, failure to obey a lawful order (two specifications), drunken or reckless driving, and wrongful use of a controlled substance (two specifications). He was reduced to E-1, forfeited $393 of pay for two months, and was placed on 45 days of restriction. In response to a proposal to administratively discharge him from service, the appellant, in an October 1992 statement, noted his participation in relief efforts following the 1989 earthquake in San Francisco as well as his participation in Operate Desert Shield/Storm. In addition, he acknowledged his several drug and alcohol-related incidents and treatment recommendations, but noted that no treatment was provided to him. His commanding officer, in an October 1992 statement, recommended separation based on the appellant's misconduct due to drug abuse, commission of a serious offense, and pattern of misconduct. It was also noted that the appellant's continued unauthorized absences and misconduct made securing substance abuse treatment "impossible." Prior to service separation, the appellant was transported in January 1993 to the VA Medical Center (VAMC) in Milwaukee where he received inpatient treatment for alcohol and cannabis dependency. He was discharged from the VAMC in February 1993. The appellant's DD Form 214 shows that the character of his service discharge in February 1993 was under "other than honorable conditions." The narrative reason for separation was misconduct - commission of a serious offense. Treatment records dated in 2009 from the Vet Center reflect that the appellant had some symptoms of PTSD but the extent of it was difficult to discern due to "AODA" and medical issues. It was noted that he would benefit from counseling but was not eligible for the Vet Center and did not seem motivate to make changes in life. In October 2010, VA received the appellant's service connection claim for PTSD with alcohol abuse. In October 2010 correspondence, VA acknowledged the appellant's claim for benefits, but noted that it must first determine whether he is eligible for benefits given that his discharge from service was under "other than honorable conditions." In additional October 2010 correspondence to the appellant, VA informed the appellant how to substantiate his service connection claim for PTSD with alcohol abuse in the event that his character of discharge is considered honorable for VA purposes. In a November 2010 statement, the appellant's representative asked that VA find the appellant eligible for VA benefits despite his character of discharge. The representative explained that the appellant was a good sailor and was awarded the Humanitarian service medal and the Navy Achievement Medal which demonstrates the quality and length of service is characteristic of honest, faithful and meritorious service. It was noted that the first recorded misconduct was after both stressors and by then he was self- medicating with alcohol and then controlled substances. The representative concluded that all of the appellant's offenses in service stemmed from his self-medication for his undiagnosed PTSD. According to a November 2010 Statement in support of the PTSD claim, the appellant indicated that, in 1989, he participated in rescuing persons from their cars and off of a collapsing bride after an earthquake hit Treasure Island. IN addition, from 1990 to 1993, the appellant was involved in the damage control section of the USS Valley Forge during operations in the Arabian Gulf, he recovered bodies killed during combat activities off shore. In addition to lifting the bodies to the flight deck and then onto helicopters, he had to place pieces of human remains into body bags. The RO's September 2011 administrative decision determined that the appellant's discharge was dishonorable and a bar to VA benefits under 38 C.F.R. § 3.12 (d)(4). The appellant maintains that his status of discharge should not be a bar to VA benefits. On his September 2013 substantive appeal, he stated that VA failed to consider the medical opinion that he was self-medicating which in turn caused his persistent misconduct. VA afforded the appellant a mental health examination in April 2011. After examining him and reviewing the claims file, the VA examiner who is a clinical psychologist stated that, based on all available evidence, the appellant was not legal insane by VA definition at the time of his legal offenses in service. Based on the definition of insane as defined by VA regulation, the appellant was not insane during his military career in that he did not engage in prolonged deviation from his normal behavior, other than to drink heavily which is excluded from the definition of insane. He does not meet either of the other definitions of insane either based on the evidence. The examiner diagnosed the appellant with PTSD based on his reported stressors. III. Laws and Regulations Governing the Attainment of Veteran Status For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. See 38 U.S.C.A. § 101; 38 C.F.R. § 3.12. A discharge or release because of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, including conviction of a felony; (4) willful and persistent misconduct, which includes a discharge under other than honorable conditions and does not include discharge because of a minor offense if service was otherwise honest, faithful, and meritorious; and (5) homosexual acts involving aggravating circumstances or factors affecting the performance of duty. 38 C.F.R. § 3.12(d). Willful and persistent misconduct includes a discharge under other than honorable conditions determined to be issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where 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 conduct excludes a discharge because of a "minor" offense if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d). 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). An absence without leave (AWOL) thus has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. See Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board's finding that two and a half months of AWOL was willful and persistent misconduct); Stringham, 8 Vet. App. at 445 (upholding the Board's finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming the Board's finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct, and, by analogy, persistent misconduct. As it prevents attainment of veteran status, a discharge under any of the aforementioned conditions pursuant to 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). An exception is made to this general rule for a person who is found to have been insane at the time he committed the acts precipitating his or her 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 causal connection between the insanity and the acts is not required. Struck, 9 Vet. App. at 145; Helige v. Principi, 4 Vet. App. 32 (1993). The burden is on the appellant to submit sufficient evidence of his insanity. Stringham, 8 Vet. App. at 445. 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. An insane person therefore 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. IV. Analysis The record shows that he was found to have unauthorized absences on 3 separate occasions, for a total of 46 days, as well as failure to obey lawful order, drunken or reckless driving, and wrongful use of a controlled substance. The appellant does not dispute that he was discharged from service under "other than honorable conditions" due to misconduct -commission of a serious offense. The evidence therefore reflects that the appellant was discharged for a pattern of persistent and willful misconduct. 38 C.F.R. § 3.12(d). The Board does not find that this in-service behavior was "minor," as his frequent periods of AWOL clearly resulted in him being incapable of performing his military duties. As already noted, an AWOL has been found on numerous occasions to constitute willful and persistent misconduct and not a minor offense. See Struck, 9 Vet. App. 145. 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). Notably however, discharge under dishonorable conditions is a bar to VA benefits (in this case, other than those under Chapter 17) 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). As indicated above, the April 2011 VA examiner determined that the appellant currently has PTSD, but, mental illness is not identical to insanity. See Beck, 13 Vet. App. 535. In fact, the VA examiner concluded that the appellant was not insane when he committed those offenses during service. In concluding so, the examiner noted that the appellant did not engage in prolonged deviation from his normal behavior other than to drink heavily, which is excluded from the definition of 'insane.' Nonetheless, the examiner also suggested that the appellant exhibited a prolonged deviation from his normal method of behavior as a "good" soldier and at the top of his class when he became withdrawn and committed several offenses after experiencing the above-described in-service stressors. This more or less prolonged deviation as a result of in-service stressors actually supports a finding that the appellant was insane at the time of the commission of the offenses causing his discharge; thus, at the very least, the evidence is in equipoise. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail upon the issue. Because a state of relative equipoise has been reached in this case with regard to whether the appellant was insane at the time he committed the offenses which led to his dishonorable discharge, the benefit of the doubt rule will be applied. Accordingly, the Board concludes that the appellant was insane at the time he committed the offenses that led to his discharge from service, and therefore his character of discharge from service is not a bar to VA benefits. He is afforded veteran status and to this extent, the appeal is granted. IV. Service Connection Claim for PTSD with Alcohol Abuse Because the Board determined herein that the appellant is afforded veteran status, it finds no prejudice in also adjudicating his service connection claim for PTSD with alcohol abuse. Indeed, the instant appeal arose from the appellant's claim of entitlement to service connection for PTSD with alcohol dependence and he made clear in his September 2013 that he seeks service connection for such disability. Further, as indicated above, the decisions made by the Board herein are fully favorable to the appellant. Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether the Veteran engaged in "combat with the enemy". See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If the VA determines the Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or written statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, the VA determines either that the Veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998). Additionally, if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 C.F.R. § 3.304(f)(3). Direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C.A. §§ 1110, 1131, and 38 U.S.C.A. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Id. However, service connection may be granted for an alcohol or drug abuse disability as secondary to, or as a symptom of, a service-connected disability. See Allen, 237 F.3d 1368 at 1375. A veteran must adequately establish, through clear medical evidence that an alcohol or drug abuse disability is secondary to or caused by a primary service-connected disorder, and not due to willful wrongdoing. Id. at 1381 In this case, the Board finds that service connection for PTSD with associated alcohol dependence is warranted. First, the Veteran currently has PTSD, as diagnosed by the April 2011 VA examiner. Second, his reported stressors (his participation in rescue operations following the 1989 earthquake in California and his participation in recovery of dead bodies of enemy soldiers during Operation Desert Strom) are credible and have been corroborated by the RO. Third, the requisite nexus element has been satisfied. The April 2011 VA examiner determined that the Veteran was suffering from severe symptoms of PTSD during his service due to his reported stressors and continues to experience them. Moreover, the examiner associated the appellant's alcohol dependence with his PTSD. In this regard, the VA examiner determined that the appellant was using alcohol as a self-medication both during his military service and to the present. It was noted that the appellant's drinking became progressively worse in an attempt to find some relief from the intense anxiety he felt and to obtain sleep which had become very difficult for him. The examiner noted that the appellant was not alcohol-dependent until after he experienced traumas in the military, as he was drinking relatively less and primarily recreationally prior to that time. The examiner concluded that the appellant continues to have PTSD with associated alcohol dependence. Because the three criteria to establish service connection are met, service connection for PTSD with alcohol dependence is established. See 38 C.F.R. §§ 3.303, 3.304, 3.310. ORDER Entitlement to status as a Veteran for purposes of VA benefits is granted. Service connection for PTSD with associated alcohol dependence is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs