Citation Nr: 1805467 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-30 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether the Veteran's character of discharge remains a bar to VA benefits. REPRESENTATION Appellant represented by: James McElfresh II, Agent WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The appellant served on active duty from November 2004 to February 2006, and was discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of the Veteran Affairs (VA) Regional Office (RO). In September 2016, the appellant appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. In a decision dated in March 2017, the Board remanded the issue. The Board finds compliance with the remand. Subsequent to the most recent supplemental statement of the case, additional evidence was added to the claims file. However, RO review of such evidence was waived in a December 2017 statement. Therefore, the Board can proceed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The appellant was discharged from his period of service from November 2004 to February 2006 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 is a bar to benefits administered by VA. 38 U.S.C, §§ 101, 5107 (2012); 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.102, 3.203, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the appellant nor his representative has raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the appellant nor his representative has raised any issues concerning the hearing held before the undersigned with respect to the claim currently on appeal. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board has thoroughly reviewed all the evidence in the appellant's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The appellant disagrees with the prior VA decisions finding that his service was not honorable. Specifically, he and his representative assert that although the appellant is in receipt of a bad conduct discharge, there is evidence that he was insane at the time of the offenses leading to his discharge. Also, they argue that although he was diagnosed with a personality disorder in service, he really had posttraumatic stress disorder (PTSD). His representative notes that the Secretary of Defense issued a statement finding that in cases where service records or any document from the period of service substantiates the existence of one or more symptoms of what is now recognized as PTSD or PTSD related during service, liberal consideration will be given to find that PTSD existed during service. Such conditions will be considered mitigating factors in the misconduct that caused the other than honorable discharge. See August 2015 substantive appeal and September 2016 Board hearing transcript. 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 C.F.R. § 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. After review of all the evidence of record, the Board finds that the appellant's character of discharge is under dishonorable conditions for VA purposes; therefore, the appellant is barred from VA benefits, including compensation and pension benefits. His service medical records reflect that on his June 2003 report of medical history he notes he had been treated for anger management. His June 2003 entrance examination was normal for any psychiatric conditions. A notation was added that he was in the custody of the juvenile department of corrections. He was discharged at age 17 and attended alternative management and schooling. He had difficulty with impulse control. Ultimately, a waiver was recommended and the appellant was allowed to enter service with the provision that he would obtain treatment for anger management. In July 2005, the appellant was evaluated by a mental health professional. The record notes he was seeking a hardship separation due to his wife's mental health condition. He reported she had been hospitalized and had violent mood swings. He also reported a history of severe violence in his past and said his violence was getting "bad again." Provisional diagnosis was personality disorder not otherwise specified with antisocial, narcissistic and borderline traits. An August 2005 record notes the appellant reported he was hospitalized at least 20 times since the age of 12 and his past suicidal/homicidal attempts were "games I played with people's heads- no true attempts." He elaborated that "I stopped eating to freak people out, "eraser burns," and "small cuts." A September 2005 record notes that since the appellant had joined the military, he had gone absent without official leave (AWOL) twice and missed movement to Iraq. He also admitted to assaulting his wife and using illegal drugs. His primary diagnosis was a personality disorder not otherwise specified with antisocial, narcissistic and borderline features and he was recommended for military separation under Chapter 5-13. The appellant was fit for administrative or judicial action deemed appropriate by command. In October 2005, he was charged with larceny and his discharge was changed to a Chapter 10. He then voluntarily requested discharge in lieu of trial by court-martial. In January 2006 he was seen at a private hospital for suicidal and homicidal ideations and was diagnosed with adjustment disorder with depressed mood. 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 service 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 being AWOL, assaulting his wife, using illegal drugs and larceny 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). 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). 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). As noted above, the appellant and his representative assert that although the appellant is in receipt of a bad conduct discharge, there is evidence that he was insane at the time of the offenses leading to his discharge. Specifically, arguing that although he was diagnosed with a personality disorder in service, he really had PTSD, which should be considered a mitigating factor in the misconduct that caused his other than honorable characterization of service. However, there is no persuasive competent evidence to substantiate a current or historical diagnosis of PTSD or current or historical presence of PTSD symptoms, to include during service. Indeed, while private treatment records from Northwest Medical beginning in July 2016 note the appellant had a diagnosis of PTSD, there was no explanation or evidence to support such diagnosis. There was no evaluation showing how the criteria for such a diagnosis were met. Instead, an August 2016 treatment record from Trinity Hospital notes the appellant had a diagnosis of PTSD, "chronic per patient's report." Such diagnosis was carried throughout the appellant's Trinity Hospital records with further notations that such finding was based on his reported history. As for the records from Northwest showing diagnosis of PTSD, despite the report indicating the appellant complained of symptoms such as flashbacks, there is not one word about any stressors or trauma that support the PTSD diagnosis. There is certainly no discussion of military stressors or trauma, merely a note (not correct) that the appellant stated he was discharged from the military because of his wife stealing items. In other words, even if this is a valid diagnosis of PTSD, there is no suggestion it is linked to his military service, when there is zero discussion of military stressors or trauma. In contrast, the September 2017 VA examiner found the appellant did not have PTSD, finding his reported symptomatology and clinical presentation did not support a diagnosis of PTSD. Upon making this finding, the examiner noted that many of the diagnoses of PTSD in the record appeared to be based exclusively on the appellant's report that he had PTSD without any supporting evidence. "Reviewers will notice that his diagnosis of PTSD provided in many of his records is listed as 'PTSD, by history.' Additionally, according to the appellant, he has only been reporting to providers that he has PTSD because his friend suggested that he has the disorder." The examiner further added that while the appellant reported traumatic events that pre-existed service, "[i]t should be noted that traumatic events occurring at such a young age are unlikely to manifest in traditional symptoms of PTSD." While the appellant might sincerely believe that he has PTSD, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis. Nothing in the record demonstrates that the appellant received any special training or acquired any medical expertise in evaluating psychiatric disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, his reported history of PTSD lacks probative value. As there is no other evidence the appellant has a competent diagnosis of PTSD, the Board finds the appellant's argument that he has PTSD which should be considered a mitigating factor in the misconduct that caused his other than honorable characterization of service to be without merit. The appellant's representative clams in an August 2014 statement that the appellant was accepted into service in sound condition, but "due to circumstances beyond his control a cyclone of events erupted causing him a momentary loss of sanity." The Board acknowledges that service treatment records reveal the appellant was diagnosed with a personality disorder not otherwise specified with antisocial, narcissistic and borderline traits, adjustment disorder, and the September 2017 VA examiner agreed that based on military service records the appellant had pre-existing personality issues, which resulted in antisocial behavior prior to military service, during, and thereafter. Nevertheless, the Board finds the evidence of record reveals that the appellant's condition does not constitute "insanity" under 38 C.F.R. § 3.354 (a) at any point during service. "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." See 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, even assuming the appellant's pre-existing personality disorder was aggravated by service, the evidence does not show that it resulted in the type of severe mental impairment as contemplated by 38 C.F.R. § 3.354 (a). First, the Board finds there is no medical evidence to suggest the appellant was insane at the time he committed the offenses which led to his discharge. Instead, the September 2017 VA examiner opined that she could not resolve the issue without resort to mere speculation, explaining that: Despite there being service mental health treatment records where there is discussion of his misconduct, AWOL, and larceny, and disciplinary records addressing the same, there is not sufficient detail provided in his records to infer the presence or absence of insanity. The veteran's electronic records in VBMS are not sufficient to be able to infer the presence or absence of insanity without speculation, especially given that these behaviors and related offenses occurred over a decade ago, and are not more temporally proximate to the present. Furthermore, the veteran is an un [sic] unreliable informant and historian. While the examiner stated that an opinion as to whether the appellant met the VA's definition of insanity at the time of the in-service misconduct could not be provided without resort to speculation, the reasons why an opinion could not be provided were fully explained. The examiner articulated that there was not enough sufficient detail provided in his records to infer the presence or absence of insanity without speculation, especially given that those behaviors and related offenses occurred over a decade ago, and were not more temporally proximate to the present. Furthermore, there is no evidence that his personality disorder was so severe and debilitating that he either lacked the capacity to understand the nature and consequences of his actions or lacked the ability to control his behavior, rendering his misconducts something other than willful. Indeed, an August 2005 service treatment record notes the appellant reported he was hospitalized at least 20 times since the age of 12 and his past suicidal/homicidal attempts were "games I played with people's heads- no true attempts." Also, in a June 2006 statement he recounted that while in service, his wife was diagnosed with bi-polar disorder and he would go to work worrying about her so he requested to be separated from the military under a hardship discharge. Although his company commander said he would submit the hardship discharge, his command sergeant major informed him that the request would not go through and he was deploying with his unit "no matter what." The appellant noted that prior to entering service, he had a waiver for anger management and based on the above described events he was becoming more irritated every day. One night when his wife was "having problems" he did not show up for duty. He got in an argument with his wife and assaulted her, which he reported to his Captain. In reply, his Captain, told him not to go AWOL anymore. The appellant stated that he "did really well for awhile after this," but three months later he started to "get in with the wrong people," which eventually led to his larceny charge. He further elaborated during his September 2016 Board hearing that he first went AWOL because he was trying to take care of his wife. Therefore, the evidence does not show that the appellant's symptoms resulted in gross mental incapacitation. The appellant, by his own admission, knew what he was doing, 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. In sum, the appellant's in-service condition 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 his personality disorder, even assuming his pre-existing condition was aggravated by service, because the record shows that he was able to function and carry out his duties on most occasions. While the instances of misconduct revealed a pattern of misconduct that ultimately led to his separation, the appellant explained that some of 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. Moreover, while the appellant was found to have antisocial, narcissistic and borderline features, 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 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 November 2004 to February 2006 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. (CONTINUED ON NEXT PAGE) 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. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs