Citation Nr: 1802853 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 07-39 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to the award of VA benefits. REPRESENTATION Appellant represented by: Eric A. Gang, Attorney-at-Law WITNESSES AT HEARING ON APPEAL The appellant and his friend ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION Per the appellant's DD Form 214, he served on active duty from April 1973 to August 1976; per the appellant's service personnel records, he served on active from January 1973 to August 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2007 administration decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2011, the Board reopened the claim on appeal and remanded it for further evidentiary development. Subsequently, the appellant requested to participate in a Board hearing, which was conducted in January 2014 before the undersigned Veterans Law Judge. Since then, the Board denied his appeal in April 2015, which the appellant appealed to the United States Court of Appeals for Veterans Claims (Court). The Court vacated the Board's decision in a November 2016 memorandum decision. Upon the case's return to the Board, the appellant's representative submitted a May 2017 opinion from Dr. Iofin. As he waived initial RO consideration of this evidence in June 2017, a remand to the RO is unnecessary. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The appellant was discharged from service after conviction by a general court martial, thereby constituting a bar to VA benefits. 2. The probative evidence of record fails to establish that the appellant was insane at the time he committed the acts that resulted in his general court martial conviction. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to VA benefits (exclusive of certain health care). 38 U.S.C. §§ 101, 5107, 5303 (2012); 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant's service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). Regulations further provide that a discharge or release for certain offenses is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d). A discharge from military service as a result of a general court martial conviction is deemed dishonorable. 38 C.F.R. § 3.12(d). However, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the commission of the offense(s) resulting in the discharge. 38 C.F.R. § 3.12(b). See also 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.354(b). An insane person 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, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has 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. 38 C.F.R. § 3.354(a). The phrase "due to disease" applies to all three circumstances provided in § 3.354(a). Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (citing Zang v. Brown, 8 Vet. App. 246, 253 (1995)). Additionally, 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, 22 Vet. App. at 419 (citing Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55). Moreover, common elements of insanity found in criminal law are not for application, but rather the specific definition set forth in § 3.354(a). See Gardner, 22 Vet. App. at 420. Facts and Analysis The appellant is seeking compensation for several disabilities that he contends are service-related; however, he was discharged from active service "under conditions other than honorable" after conviction by a general court martial, and the character of his discharge is a bar to VA benefits. The appellant asserts that he was insane, as defined by VA regulation, at the time he committed the offenses leading to this conviction because he was suffering from posttraumatic stress disorder (PTSD) as the result of a gunshot wound he suffered in-service, thereby providing a legal basis for overcoming this bar to benefits. Per the November 2016 memorandum decision from the Court, the Board has been asked to make a factual finding as to the date of his gunshot wound and reassess the medical opinions of record in light of the finding. Further, the Board must address Dr. Iofin's June 2017 medical opinion. The Board has previously found that the appellant is competent to report incurring a gunshot wound of his left knee during service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). While the pertinent facts are discussed in more detail below, the Board finds that the appellant suffered the gunshot wound in January 1974. At a December 1977 VA examination, notes that the appellant suffered a gunshot wound in January 1974. As noted in the appellant's brief before the Court, a January 1975 service treatment record (STR) states that pain and stiffness in the left knee was caused by a gunshot wound a year earlier. Therefore, the Board finds that the gunshot wound occurred in January 1974. The Board does not find any persuasive evidence of record indicating that the gunshot wound occurred earlier than that date. In light of this finding, the Board again reviewed the evidence of record to reach the legal determination that the Veteran was not "insane" at the time the incidents leading to his discharge occurred. In January 1973, the appellant entered active service. In March 1973, while stationed in California, because he struck a fellow soldier with the butt of an M-16 rifle, he was punished pursuant to Article 15. The appellant's service personnel records reflect that in January 1974, he received punishment pursuant to Article 15 for disrespectful behavior towards a noncommissioned officer. In February 1974, he received punishment pursuant to Article 15 for leaving his post without permission, for failing to register his rifle, and for smoking marijuana. In March 1974, a "Certificate of Unsuitability for Reenlistment" was issued in which the appellant was barred from reenlistment after the termination of his service contract in January 1977. In support of the finding of unsuitability for reenlistment, the Veteran was noted to be "a substandard soldier," to have an attitude toward superiors that was negative, and to exhibit "behavior unbecoming of any soldier." It was also noted that the appellant was pending a Court Martial for his January 1974 possession of an unauthorized weapon resulting in one individual, other than himself, being wounded and that in February 1974 he had shown a lack of discipline and respect by abandoning his road guard position during a battalion live fire exercise. In March 1975 and April 1975, the appellant was commended for his performance of his service duties. However, in May 1975, the appellant received punishment pursuant to Article 15 for assaulting a fellow service member and not reporting his related knowledge. In June 1975, the appellant was again commended for his performance of his service duties. However, that same month, the appellant also committed offenses for which he was convicted by general court martial in October 1975. Specifically, the appellant was convicted of disrespectful behavior towards a noncommissioned officer; disobeying an order from a noncommissioned officer; wrongfully appropriating an Army vehicle; disobeying an order from a commissioned officer; assaulting a commissioned officer by driving a vehicle into him; and for a subsequent period of absence without leave (AWOL). In July 1975, the appellant received a medical profile for bilateral chondromalacia patella (an orthopedic bilateral knee disability). In October 1975, when the appellant was convicted by general court martial for offenses committed in June 1975, a resulting bad conduct discharge was ordered. During the appellant's appeal of the general court martial conviction, the appellant was convicted by special court martial of offenses committed from December 1975 to February 1976, namely leaving a post without permission and disrespecting a noncommissioned officer in December 1975 and a period of AWOL from January to February of 1976. In August 1976, the general court martial convictions were affirmed, and the appellant separated from service. Gunshot wound residuals of the left knee were noted on a VA general medical examination performed in December 1977. In April 1992, the appellant sought mental health treatment per his employer's recommendation, and the appellant was diagnosed with an adjustment reaction with anxiety and depression, and a "characterological issue" [personality disorder] was strongly suspected. In January 2010 and June 2012 statements, the appellant's treating psychologist reported treating the appellant since April 2005 and opined that the appellant has PTSD due to his in-service gunshot wound. These opinions are unpersuasive as they do not provide a thorough and coherent explanation for all of the appellant's behavior during service. In August 2012, the appellant underwent a VA psychiatric examination, during which the examiner diagnosed the appellant with PTSD (as a result of his in-service gunshot wound) and a personality disorder, not otherwise specified, but opined that the appellant was not insane at the time he committed the offenses leading to his bad conduct discharge. In support of this opinion, the VA examiner stated that the appellant's in-service and post-service patterns of maladaptive behavior, resulting from his personality disorder, preceded his reported gunshot wound that triggered his PTSD and that he demonstrated this maladaptive behavior when committing the acts leading to his general court martial conviction. The examiner stated that the appellant's in-service pattern of behavior was not consistent with symptoms of PTSD (which can have a delayed, i.e. post-service, onset after exposure to the PTSD stressor) or any other mood disorder, but rather were consistent with his long-standing personality disorder. In January 2013, the appellant's treating psychologist opined that the appellant was suffering from a significant psychiatric disorder that impaired his thinking and functioning following his in-service gunshot wound at the time he committed the acts resulting in his bad conduct discharge. The psychologist said that while the appellant did not demonstrate psychotic behavior in service, his impaired psychiatric state was evident by his aberrant, maladaptive, and hostile behavior towards his superiors and fellow service members. However, the Board rejects this opinion as it fails to address problematic behavior prior to the gunshot injury in January 1974. In January 2014, the appellant participated in a Board hearing, at which time he continued to assert that he was psychologically impaired when he committed the acts leading to his bad character discharge as a result of his in-service gunshot wound, including as a result of his prescribed pain medications. However, the appellant's recollection of his actions during service was impaired, as he reported the acts forming the basis of his 1976 special court martial conviction as the basis for his discharge from service, when in fact he was discharged based on acts that formed the basis of his 1975 general court martial conviction. Pursuant to the Board's May 2014 remand directives, a VA medical opinion addressing the appellant's sanity during service was rendered in June 2014. The VA psychologist, per the Board's request, considered the regulatory definition of insanity sufficient to overcome the bar to benefits create by a bad conduct discharge, and stated that the appellant's psychiatric impairment evident during service was his personality disorder, which was manifested by the characterological/maladaptive behaviors that typify this impairment, including an antisocial pattern of behavior, disregard for authority and societal norms, and little empathy for others. The examiner cited the appellant's consistent history of maladaptive behavior prior to and after the time he reports sustaining a gunshot wound and stated that this behavior does not typify PTSD or any other Axis I mood disorder, but rather is characteristic of Axis II personality disorder traits. The examiner stated that the appellant's personality disorder traits were evident before and persisted after he reportedly incurred a gunshot wound, and that this chronology is more logical and reasonable than a conclusion that the appellant's behavior after his reported gunshot wound was the result of his PTSD symptoms. The examiner stated that the appellant's periodic recognition of commendable performance of his duties demonstrated that he was indeed sane during service and capable of making more adaptive and appropriate decisions when motivated to do so, but that his resolve to make such decisions was impeded by his pathological personality traits. The Board notes that the 2014 examiner stated that the appellant's gunshot wound occurred in January 1975 and that this is inconsistent with the Board's finding that the Veteran's gunshot wound occurred in January 1974. However, in finding that the appellant demonstrated an antisocial pattern suggesting pathological personality traits, the examiner cited only to three incidents from 1973 (striking another soldier with the butt of an M-16 rifle in March 1973, disrespect to a non-commissioned officer in September 1973, failure to repair in October 1973). Though the appellant committed additional infractions in 1974, the examiner has not relied on these in finding that the appellant suffered from a personality disorder and that he was not insane as his behavior that resulted in his discharge was due to the personality disorder. Thus, the Board accepts the conclusion of the 2014 examiner, and there is no need for a new examination, because the examiner relied on an accurate factual basis in arriving at the opinion rendered. This finding adequately addresses the issue raised in the November 2016 memorandum decision. Also in June 2014, the appellant's private treating psychologist submitted another medical opinion in which he expounded on his finding that the appellant was psychiatrically impaired during service. The psychologist stated that the appellant's primary psychiatric impairment, both during and after service, was PTSD triggered by his reported gunshot wound, and that the appellant's commission of maladaptive behaviors prior to service (as his 2012 VA examination report notes his high school expulsion for engaging in fights with fellow students) and prior to his reported gunshot wound were the result of his young and impulsive behavior, and not the manifestations of his personality disorder. Moreover, the psychologist stated that the appellant's maladaptive behavior demonstrated after his reported gunshot wound and his reports of experiencing depression and anxiety after sustaining this injury, are consistent with PTSD symptomatology. Further, based on the effects of his PTSD and his reports of being in extreme pain, as he reports he was denied pain medication when recovering from his gunshot wound, rendered him mentally impaired at the time of the commission of the offenses leading to his discharge from service. However, the Board does not find this chronology persuasive, but rather finds the rationale of the VA opinions more convincing, namely that the appellant has a longstanding personality disorder, which resulted in his maladaptive behavior prior to, during, and after service, and which was detected by his 1992 private psychiatric treatment providers, his current private treatment provider, and the VA examiner. The examiner further noted that the appellant's in-service behaviors were not consistent with PTSD symptoms, but rather were consistent with the types of behavior that typify personality disorders, as the appellant was able to perform well when motivated to do so, as reflected by the three commendations he received in 1975. As the Board finds that the rationale provided by the VA examiner is more persuasive and consistent with the record, the Board accords this medical evidence more probative weight. In June 2017, the appellant filed a May 2017 opinion by Dr. Iofin. After reviewing the appellant's history, as well as a history of the diagnostic manual, Dr. Iofin opined that the appellant did not have and does not have a personality disorder. He notes that the Veteran describes the fights in which he engaged in high school as being the product of the need to defend himself against a group of white students in a newly-desegregated school in the Deep South in the early 1970s. As a result, Dr. Iofin opines, the appellant did not meet the criteria for a personality disorder because such disorder did not exist from adolescence. He also notes that clinicians that have provided treatment to the appellant have not diagnosed him with a personality disorder. The Board does not find Dr. Iofin's opinion persuasive. First, Dr. Iofin stated that in January 1977 the Veteran service contract was terminated and he was barred from reenlistment. However, the appellant was barred from reenlistment in March 1974 as a result of actions that occurred both before and after his gunshot wound. As a result, the Board does not accept that the Veteran's infractions before suffering a gunshot wound were less serious than those that occurred after the gunshot wound. Rather, the appellant struck a fellow soldier with the butt of his M-16 rifle, which the Board considers a very serious incident. In fact, this is a fatal flaw in Dr. Iofin's opinion in that it shows a pattern of discounting appellant's behavior prior to his gunshot wound. Dr. Iofin also states that the appellant denied a history of regular fighting during his upbringing, but noted that the appellant was suspended in high school for fighting, noted as "two or three episodes of fighting." The Board notes for context that the appellant dropped out of high school as a freshman, meaning that these two or three episodes occurred within a relatively short period of time. As a result, Dr. Iofin's dismissal of these fights as relevant to a pattern of previous behavior or personality disorder is unconvincing. While the Board is sensitive to the historical context the Veteran has communicated with regard to the details of these fights, the Board, after reviewing the facts of the case, finds these fights as part of a pattern behavior indicative of a personality disorder stretching back to adolescence as the 2014 examiner did. Additionally, as the appellant entered service days after his seventeenth birthday, the Board is not convinced, and Dr. Iofin certainly does not explain why, the appellant's behavior during service would not be relevant to a diagnosis of a personality disorder under the diagnostic criteria as at seventeen the Veteran was still an adolescent. In reaching his conclusion, Dr. Iofin has minimized or ignored this behavior. This means that Dr. Iofin's opinion fails to provide a holistic explanation for his conclusion that the appellant was "insane." Further, Dr. Iofin does not address the 2014 examiner's opinion that his letters of commendation in his file show that the appellant could indeed make more appropriate and adaptive deviations within the boundaries of military life if he chose to, and was likely sane during his time in the military, though he suffered the entire time with pathological personality traits that impeded his successful coping in service both before the gunshot wound and afterwards. Thus, the Board finds Dr. Iofin's catch-all description of the appellant's disrespectful and unsoldierly behavior after 1974 to be too simplistic. Given that the more probative evidence establishes (the 2014 examiner's opinion) that the appellant's behavior resulting in his 1975 general court martial conviction was the result of his personality disorder, the Board notes that personality disorders are not diseases eligible for service connection, nor are they mental impairments that meet the regulatory definition of insanity. See VAOPGCPREC 20-97 (May 22, 1997). As to the appellant's representative's argument that due to the appellant's youth at the time he entered service, it is likely that his personality disorder manifested during service, the onset of the personality disorder or whether the personality disorder was aggravated beyond its natural progression during service is immaterial, as regardless of the manifestation or progression of the personality disorder, it is not a disorder that may be deemed to have rendered the appellant "insane." See id. In sum, as the more probative evidence of record fails to establish that the appellant was insane under the § 3.354(a) definition when he committed the acts for which he was convicted by general court martial, the appellant's character of discharge remains a bar to his eligibility for VA benefits. Thus, the preponderance of evidence is against the claim; there is no doubt to be resolved, and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The character of the appellant's discharge from service constitutes a bar to the award of VA benefits, and the appeal is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs