Citation Nr: 1746541 Decision Date: 10/18/17 Archive Date: 10/31/17 DOCKET NO. 12-12 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether the character of the appellant's discharge from service is a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Navy from December 1988 to July 1992, and was discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was remanded in April 2014 to afford the appellant a hearing and in September 2014 and January 2017 for further development. The Board finds that there has been substantial compliance with the remand directives as the appellant's Social Security Administration records were obtained, medical records were obtained, he was provided an opportunity to provide lay statements concerning his psychiatric symptoms in service and he was provided a VA examination in which the examiner obtained a detailed history of the appellant's symptoms in service and provided responses to the Board's questions. Stegall v. West, 11 Vet. App. 268 (1998). In July 2014, the appellant presented sworn testimony at a hearing before a Veterans Law Judge who is no longer with the Board. A transcript of that hearing is of record. The appellant declined to have an additional hearing in this matter. See December 2016 Correspondence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The appellant was discharged from his period of service from December 1988 to July 1992 under other than honorable conditions. 2. The combination of offenses committed by the appellant constitutes a pattern of willful and persistent misconduct. 3. The appellant was not insane at any time during service. CONCLUSION OF LAW The character of the appellant's service from December 1988 to July 1992 is a bar to benefits administered by VA. 38 U.S.C.A. §§ 101, 5103, 5103A, 5303, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.102, 3.203, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant seeks nonservice-connected pension benefits based on a diagnosis of paranoid schizophrenia. His claim was denied because his military personnel records show that he was discharged from service under conditions other than honorable as a result of willful or persistent misconduct. He contends that he was suffering from a mental illness during service, and that this mental illness caused the behavior that led to his discharge for a pattern of misconduct. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Specifically, in his substantive appeal received in May 2012, the appellant asserted that his schizophrenia started while he was in service and was the cause of his in-service offenses. He also reported on several occasions that he suffered from depression in service, and that this condition also led to his in-service offenses, either directly or because he was using alcohol to cope with his symptoms. See January 2017 Correspondence; April 2017 VA Examination Report. He reported that after he got to his permanent duty station he started having difficulties with his superiors. See January 2017 Correspondence. He stated that one of the petty officers accused him of dating the officer's girlfriend, and that the officer "made [his] life a living hell after that," leading to his depressive symptoms. See id. He reported that after this incident, he went to a party and had some drinks because he wanted to have fun and fit in with the rest of the guys. He noted that after the initial incident, the officer kept "doing everything he could to make [the appellant's] life a living hell," and that the appellant's depression worsened to the point that he contemplated suicide. See id. He explained that he was so depressed that when he returned home he stayed longer than he had leave, resulting in his being AWOL. See id. Applicable Law When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. See Holmes v. Brown, 10 Vet. App. 38, 40 (1997) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991). A "veteran" is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). VA regulations provide that a discharge or release because of willful and persistent misconduct, or other specified offenses, is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). 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. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). Service department findings are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. The claimant's recourse is with the service department. See 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000) (VA is bound by service department findings); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) ("service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces"). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). A discharge or release from service because of willful and persistent misconduct is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). An insane person is defined as one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, (1) a more or less prolonged deviation from his normal method of behavior; (2) 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. Zang v. Brown, 8 Vet. App. 246, 253 (1995) (holding that he only way to read § 3.354(a) so as to avoid an absurd result is to apply the phrase "due to a disease" to all three circumstances provided for in the regulation); 38 C.F.R. § 3.354(a). Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis. Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009); Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55; 38 C.F.R. § 3.354(a). When a rating agency is concerned with determining whether an appellant was insane at the time he committed an offense leading to his court-martial, discharge or resignation (38 U.S.C. § 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section. 38 C.F.R. § 3.354(b). Behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity. VAOPGCPREC 20-97, 62 Fed. Reg. 37955 (1997). Insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import and consequences of his acts; he is a danger to himself or others. Id. 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. The term "constitutionally psychopathic" refers to a condition that may be described as an antisocial personality disorder. Id. The term "become antisocial" refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id. Behavior which is generally attributable to a substance-abuse disorder does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall within the scope of the term insanity and therefore does not constitute insane behavior. Id. Character of Discharge After review of all the evidence of record, the Board finds that the appellant's character of discharge from the Navy is under dishonorable conditions for VA purposes; therefore, the appellant is barred from VA benefits, including compensation and pension benefits. The appellant had one period of active service from December 1988 to July 1992. His records show that he was disciplined in April 1990 for willful destruction of military property and disrespect to a petty officer when he used disrespectful language and broke four plates, which were military property. He was also disciplined in January 1991 for drunk and disorderly conduct, in July 1991 for being absent without official leave (AWOL), and in March 1992 for being absent from his appointed place of duty. In March 1992, he was given notice that he was being considered for an administrative separation from service by reason of Misconduct Due to a Pattern of Misconduct, and that his separation may be under other-than-honorable conditions, which could affect his ability to obtain benefits in the future. He was notified of his rights, including the opportunity to consult with counsel and to make a written statement. His Commanding Officer (CO) noted that he had become a "constant and serious disciplinary problem" in the previous six months and, while he did show slight improvement, returned to his poor working habits in a short period of time. The CO noted that the appellant could not work productively and that his example was disruptive to good order and discipline. The appellant reportedly would not accept the benefits of counseling. The CO recommended an other-than-honorable discharge. Under these circumstances, the Board finds that the appellant's discharge was due to willful and persistent misconduct and thus is considered to have been issued under dishonorable conditions for VA purposes. The Board also finds that the offenses committed in between April 1990 and March 1992 cannot reasonably be described as falling within the exception for a "discharge because of a minor offense" as provided by 38 C.F.R. § 3.12(d)(4). The U.S. Court of Appeals for Veterans Claims (Court) in Stringham v. Brown, 8 Vet. App. 445, 448 (1995) held that "offenses that would interfere with [the] appellant's military duties, indeed preclude their performance . . . could not constitute a minor offense." Here, it is clear that the appellant's misconduct due to willful destruction of military property, disrespect to a petty officer, drunk and disorderly conduct, being AWOL and being absent from his appointed place of duty are offenses that interfered with his military duties, and indeed precluded his performance. Therefore, they do not constitute minor offenses. See also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). The records show that in April 1990 and July of 1991 the appellant was counselled and advised that any further deficiency in performance or conduct could result in disciplinary action and/or processing for administrative discharge, and the appellant acknowledged receiving such counseling with a signature. Thus, the Board finds that these offenses, which occurred during the appellant's single period of active service, constitute persistent and willful misconduct. As such, the appellant's discharge is under dishonorable conditions as defined by 38 C.F.R. § 3.12 (d)(1), and VA benefits are barred by statute. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c). Insanity as a Defense Considering the appellant's contentions regarding his mental state during service, the Board finds that the appellant was not, at any time during service, "insane" as that term is defined in 38 C.F.R. § 3.354(a). First, the evidence of record does not show that the appellant exhibited symptoms of schizophrenia or psychosis in service. The appellant was not noted to have any psychiatric disorder at entrance into service. See November 1988 Entrance Examination. His service treatment records are silent for complaints, findings, diagnosis, or treatment for any mental disorder, including schizophrenia. The records show that, in February 1991, he presented for an alcohol dependency screening. He related that in December 1990 he became intoxicated and allegedly got in a fight with a shipmate, but admitted he did not remember the details and believed he had "black[ed] out." He disclosed that he was a member of a "broken home" and began using alcohol when he was 17 years old. He admitted to approximately 13 mixed drinks on weekends or approximately 20 per week, but that he did not get drunk every time he drank. The provider recommended treatment for alcohol abuse. On mental status examination, the appellant was alert and fully oriented, but required increased response time. The provider did not note the presence of any mental disorder other than alcohol dependence. The appellant was not found to have any psychiatric disorder at his April 1992 separation examination. The appellant's post-service medical records and VA examinations show a history of psychiatric symptoms, alcohol abuse and drug abuse, including psychotic symptoms such as auditory hallucinations, persecutory ideation and possible delusions. However, this evidence does not support the conclusion that the appellant exhibited psychotic symptoms during service. An August 2006 mental health record notes that the appellant had a history of depression, but no history of psychosis or hallucinations. During an April 2007 psychiatric evaluation he reported "having trouble since Hurricane Katrina." He explained that one of his neighbors had been "harassing" him, stating that the harassment originally began in his early 20s when he was discharged from Navy. See April 2007 Adult Psychiatric Evaluation. The provider noted that the appellant was positive for paranoia and auditory hallucinations, also noting a history of treatment for depression in 2005 and alcohol dependence in the Navy, with cocaine use off and on for the prior two to three years. See id. The Axis I diagnosis given was schizophrenia, paranoid type vs. schizoaffective disorder, polysubstance abuse in acute remission. See id. This is the first diagnosis of schizophrenia or schizoaffective disorder in the record. In February 2008, it was noted that the appellant suffered from auditory hallucinations and paranoid delusions of thinking that people were trying to poison him, but it was also noted that he had a substance induced mood disorder/depression, and that his history is complicated by significant drug abuse. See February 2008 Medical Records. His medical records show continued hallucinations and persecutory delusions, in addition to continued substance abuse. See August 2008 to July 2014 Medical Records. Significantly, the appellant recounted that he did not experience psychotic symptoms (auditory hallucinations, persecutory ideation or possible delusions) until after he separated from the military. See April 2017 VA Examination Report. Thus, the evidence of record shows that the appellant was first diagnosed with schizophrenia and/or schizoaffective disorder in 2007 and did not exhibit any psychotic symptoms during service. As noted above, the appellant contends that he suffered from depression during service, and that his depression and associated alcohol use resulted in his misconduct during service. Even considering the appellant's lay reports of experiencing depression in service, the Board finds that the symptoms and impairments described by the appellant do not rise to the level of "insanity" within the context of 38 C.F.R. § 3.354(a). The Board acknowledges that the appellant competently and credibly reported that he experienced depression during service, and that the April 2017 VA examiner opined that the appellant's depressive symptoms constituted a mental disease or disorder during service. See January 2017 Correspondence; April 2017 VA Examination Report. The Board further notes the appellant's assertion that his depression led to drinking excessively, being AWOL, and making poor decisions such as not appearing for duty. See January 2017 Correspondence; April 2017 VA Examination Report. Nevertheless, the Board finds that this condition does not constitute "insanity" under 38 C.F.R. § 3.354(a). "The question of insanity arises in numerous legal proceedings, and its meaning may vary according to the jurisdiction and the object or purpose of the proceeding. However, in all contexts, the term indicates a condition involving conduct which deviates severely from the social norm." VAOPGCPREC 20-97 at 4. In order to be considered insane under 38 C.F.R. § 3.354(a), the circumstances must show that the appellant suffered from a severe form of mental disability or gross impairment in mental functioning. See VAOPGCPREC 20-97 at 4-7 (holding that section 3.354(a) must be interpreted in light of the commonly accepted meaning of the term, and comparing the definitions found in Black's Law Dictionary ("[t]he term is more or less synonymous with . . . psychosis," which itself has been defined as ?a mental disorder characterized by gross impairment in reality testing' or, in a more general sense, as a mental disorder in which ?mental functioning is sufficiently impaired as to interfere grossly with the . . . capacity to meet the ordinary demands of life'" ) and Webster's Third New International Dictionary 1168 (1981) ("?insanity' is a severe mental disorder, encompassing ?such unsoundness of mind or lack of understanding as prevents one from having the mental capacity required by law to enter into a particular relationship, status, or transaction or as excuses one from criminal or civil responsibility'")). In this case, the evidence does not show that the appellant's depression resulted in the type of severe mental impairment as contemplated by 38 C.F.R. § 3.354(a). The appellant recounted that his argument with the petty officer that led to the April 1990 charge of misconduct arose out of the petty officer's mistaken believe that the appellant was dating the officer's girlfriend. See January 2017 Correspondence; April 2017 VA Examination Report. The appellant does not assert that he was experiencing depressive symptoms during this incident, but rather that this incident precipitated his depressive symptoms. See id. Regarding the drunk and disorderly conduct, the appellant testified at the July 2014 Board hearing that he was at a party where everybody was drinking and he wanted to fit in, but he "was not used to drinking and after a couple drinks I guess I did some things I would not have ordinarily done." See July 2014 Hr'g at 3. At the April 2017 VA examination, he explained that he had a drinking problem at that time, and that his drinking led to "poor decisions." The appellant did not describe experiencing any gross mental impairment during this time. See April 2017 VA Examination Report; January 2017 Correspondence. Concerning the time he was AWOL in July 1991, he testified that he "just mismanaged [his] time" and was late returning from leave. See July 2014 Hr'g Tr. at 3-4, 6. He further testified that "[t]he second time I just kind of left my duty station." See id. at 6-7. When specifically asked whether there was a reason for his actions or to describe the circumstances of each event, the appellant testified that he made some mistakes or "stupid choice[s]" during military service. See id. He did not identify any problem or particular circumstances that caused his behavior. In his January 2017 correspondence and during the April 2017 VA psychiatric examination, the appellant stated that he was experiencing depressive symptoms during the period that he was AWOL and connected his increased tendency and desire to "party" and use alcohol excessively to cope with depressive symptoms. He reported that he was AWOL in July 1991 because he "made a bad decision to stay longer," because he was "having too much fun" and failed to return on time. He further reported that he was absent from duty in March 1992 because he "snuck out and went to the enlisted club to go party." See April 2017 VA Examination Report. He told the examiner, "I regret it to this day. I loved being a sailor but I made little dumb decisions." The April 2017 VA examiner noted that the appellant appeared to have understood that it was not appropriate behavior. The examiner further noted that the appellant was uncertain as to how the depression impacted his decisions at the time because he stated that he did not know if depression was a contributing factor or not." See id. Concerning his depressive symptoms, the appellant stated that towards the end of high school, he noted some anxiety and sought therapy for depression; however, he ultimately dropped out of treatment. He reported that when he entered the Navy he "just kind of rolled with it," and did not receive any mental health treatment during service outside of treatment to decrease his alcohol consumption. He reported that during service he was "going through some stuff," that things were "going bad," and that he was "concerned that he wasn't going to do well." See April 2017 VA Examination Report. He denied disturbances in motivation and energy at that time, stating that "having fun" was his "escape of getting away from it all." He reported using alcohol regularly to cope with depression. See id. The symptoms reported by the appellant as well as his reasons for his misconduct in service do not support a finding that he was insane in service. The evidence does not show that the appellant suffered from severe symptoms, or that his symptoms resulted in gross mental incapacitation. The appellant, by his own admission, knew the consequences of his actions and made bad decisions. The Board finds that making bad decisions does not equate with insanity as defined in the relevant regulation. The appellant's depression did not meet the criteria set forth in 38 C.F.R. § 3.354(a). The circumstances do not show that the appellant exhibited a more or less prolonged deviation from his normal method of behavior due to depression because the record shows that he was able to function and carry out his duties on most occasions. While the four instances of misconduct revealed a pattern of misconduct that ultimately led to his separation, the appellant explained that three of the four incidents of misconduct arose because he made bad choices. This evidence, without more, does not show a prolonged deviation from the appellant's normal method of behavior. Furthermore, although the act of disrespecting an officer technically interferes with "the peace of society," the appellant did not associate the incident between him and the officer with his depressive symptoms and thus the appellant's behavior during the incident was not due to mental disease or disorder. Moreover, it cannot be said that the appellant's behavior was antisocial or so departed 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. Again, the appellant recognized that his behavior was a result of his bad choices, and while the circumstances leading to his discharge from service evidence a pattern of misconduct, they do not show such a severe departure from social norms as to be considered "antisocial." Likewise, given that the appellant was able to complete some of his duties, it cannot be said that he lacked the adaptability to make further adjustment to the social customs of the community in which he resides. In short, the circumstances in this case do not show that the depressive symptoms the appellant experienced in service were severe in nature or caused the type of severe mental impairment contemplated by 38 C.F.R. § 3.354(a). Accordingly, the appellant's character of discharge for the period of service from December 1988 to July 1992 is under dishonorable conditions for VA purposes, and is thus a complete bar to VA benefits. See 38 U.S.C.A. § 5303(a); 38 C.F.R. §§ 3.12, 3.13, 3.354. ORDER The character of the appellant's discharge from active military service is a bar to the receipt of VA benefits, and the appeal is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs