Citation Nr: 1804745 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-25 349 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut THE ISSUE Whether the character of the appellant's discharge from service is a bar to VA benefits, to include health care and related benefits authorized under Chapter 17, Title 38, United States Code. WITNESSES AT HEARINGS ON APPEAL Appellant and his two children ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The appellant served on active duty from February 1978 to August 1981 and received a discharge under conditions other than honorable for the good of the service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 determination that the character of the appellant's discharge from service is a bar to VA benefits, to include health care and related benefits authorized under Chapter 17, Title 38, United States Code, by a VA Regional Office (RO). The appellant and his two children testified at a May 2012 hearing held at the RO before a decision review officer, and the appellant testified at an October 2017 videoconference hearing held before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the electronic record. Though the RO separately adjudicated the issue of whether the appellant was insane at the time of he committed the offenses leading to his discharge in a May 2014 rating decision and a March 2015 statement of the case, the question of whether the appellant was insane at the time of he committed the offenses leading to his discharge is part of the issue on appeal and, thus, not a separate judicable issue. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he was insane during his periods of absence without leave (AWOL). The Board is cognizant that a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the United States Court of Appeals for Veterans Claims (the Court) has also held that the Board is required to obtain a medical opinion to determine whether a claimant's behavior during the offenses that led to his discharge was due to psychiatric disability and, if so, whether this constituted insanity under VA regulations. Gardner v. Shinseki, 22 Vet. App. 415 (2009). Therefore, an opinion must be obtained. In that regard, the Board notes that behavior that is attributable to a personality disorder, to include antisocial personality disorder, dose not satisfy the definition of insanity in 38 C.F.R. § 3.354(a) (2017). VAOPGCPREC 20-97 (May 22, 1997). The appellant is receiving Social Security disability benefits. The RO should obtain records from the Social Security Administration pertaining to his claim. Accordingly, the case is REMANDED for the following action: 1. Ask the appellant to identify all treatment for his psychiatric disorder and obtain all identified records. 2. Contact the Social Security Administration and obtain all records pertaining to his claim for Social Security disability benefits. 3. After the development in 1 and 2 is completed, schedule a VA examination to determine whether he was insane during his periods of AWOL. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner is also asked to provide the following information: The examiner should opine on whether it is at least as likely as not that (i.e., to at least a 50 percent degree of probability) the Veteran had an acquired psychiatric disorder other than a personality disorder at the time of periods of AWOL. If the Veteran had an acquired psychiatric disorder other than a personality disorder at the time of periods of AWOL, the examiner should opine on whether it is at least as likely as not that (i.e., to at least a 50 percent degree of probability) the acquired psychiatric disorder during the periods of AWOL caused the appellant to exhibit a more-or-less-prolonged deviation from his normal method of behavior. If the Veteran had an acquired psychiatric disorder other than a personality disorder at the time of periods of AWOL, the examiner should opine on whether it is at least as likely as not that (i.e., to at least a 50 percent degree of probability) the acquired psychiatric disorder during the periods of AWOL caused the appellant to interfere with peace of society. If the Veteran had an acquired psychiatric disorder other than a personality disorder at the time of periods of AWOL, the examiner should opine on whether it is at least as likely as not that (i.e., to at least a 50 percent degree of probability) the acquired psychiatric disorder during the periods of AWOL caused the appellant to become so departed (become antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided. Clear rationales for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 4. Thereafter, the AOJ should readjudicate the issue on appeal. If the benefit is not granted, the appellant should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).