Citation Nr: 1525652 Decision Date: 06/16/15 Archive Date: 06/26/15 DOCKET NO. 14-02 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Whether the Appellant's character of discharge from military service is a bar to VA benefits. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Appellant had military service from July 1963 to August 1966. He received a discharge under conditions other than honorable. In March 2011, the Appellant filed claims for service connection for lung cancer, C6-7 disk protrusion, L5-S1 facet arthopathy, degenerative joint disease (DJD) of the knees, residuals of a surgical lumbar cyst removal, and coronary artery disease (CAD)/ischemic heart disease. In an October 2011 administrative decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, found that the Appellant's discharge is considered to have been issued under conditions that preclude the payment of VA benefits. The Appellant appealed this decision. The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2014. A transcript of this hearing is of record. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Appellant's hearing testimony contends that his periods of AWOL were, in part, the result of PTSD or some other psychiatric disability. His statements can be reasonably construed as an argument that his periods of AWOL should be covered by the insanity exception, by which a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). The Appellant's testimony is that he was "really messed up," and that he suffered from flashbacks, nightmares, depression, and feelings of anger. He also testified that he sought treatment at some point in service and was told he was acting like a child, although he could not find the records. The Appellant's service treatment records (STRs) contain a June 1966 physical and psychiatric examination that diagnosed the Appellant with an immature personality characterized by irresponsible behavior, failure to make appropriate plans, and shirking of duties. These findings are in line with the Appellant's recollections of being told that he was behaving like a child. As the June 1966 examination indicates that the Appellant did have some psychiatric difficulty that was related to his shirking of duties, it is appropriate to obtain an opinion as to whether these diagnoses are indicative that the Appellant was insane at the time of his periods of AWOL. The Appellant's testimony also indicated that he sought treatment from a psychiatric doctor, and had some paperwork, but had been unable to find it. Upon remand, the AOJ should also contact the Appellant to determine if he is able to identify the psychiatric doctor from whom he sought treatment around the time of his periods of AWOL. If he is able to do so, the AOJ should attempt to obtain these records. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Appellant and ask that he identify any doctor or facility from which he received psychiatric treatment related to his periods of AWOL. If he is able to identify any such treatment provider, obtain any necessary authorization and contact any treatment providers referenced and request all psychiatric treatment records related to the Appellant. The AOJ must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the AOJ must (1) inform the Appellant of the records that were not obtained (2) tell the Appellant what steps were taken to obtain them, and (3) tell the Appellant that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2013)). 2. After completing the above, schedule the Appellant for an examination with a VA psychiatrist or psychologist. After reviewing the claims file, the examiner is requested to offer an opinion as to whether it is at least as likely as not that the Appellant was insane at the time of his dishonorable discharge, as defined under 38 C.F.R. § 3.354(a). The purpose of the examination is to determine whether the deceased was "insane" as defined by 38 C.F.R. § 3.354(a) during the period when he committed the acts that led to his discharge from service under conditions other than honorable. The examiner is advised that 38 C.F.R. § 3.354(a) provides 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. The examiner is also advised that the Appellant's April 2014 hearing testimony is for consideration. The examiner must provide a complete rationale for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. 3. After completing all of the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return it to the Board. 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).