Citation Nr: 18145842
Decision Date: 10/30/18	Archive Date: 10/30/18

DOCKET NO. 13-33 966
DATE:	October 30, 2018
REMANDED
Whether the appellant's character of discharge is a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded.
REASONS FOR REMAND
The appellant served on active duty from November 1992 through August 1993.
The Veteran testified in support of these claims during a hearing before the undersigned Veterans Law Judge in September 2016.
Whether the appellant's character of discharge is a bar to the receipt of VA benefits is remanded.
The Board denied this claim in a September 2017 decision.  The appellant appealed the decision to the Court of Appeals for Veterans Claims (Court).  In June 2018, the Board’s decision was vacated and remanded pursuant to a May 2018 Joint Motion for Remand (Joint Motion).  The Joint Motion found that the Board’s decision should have considered whether the appellant’s Social Security Administration (SSA) records were relevant to his appeal and that the Board did not provide adequate reasons and bases for discounting the appellant’s private medical opinions. 

The matter is REMANDED for the following action:
1. Obtain a complete copy of the Veteran’s SSA benefits claim and all associated medical records.
2. Provide the appellant with a VA medical examination to determine whether he was insane at the time of the conduct that led to his discharge. 
The examiner is informed that for VA purposes “[a]n 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 her 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. 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.”  38 C.F.R. § 3.354(a).
The examiner must review the claims file, to specifically include the appellant’s lay statements and his private medical opinions (September 2016 opinions from Dr. R.D.L. and Dr. K.A.R.  After a review of all of these records, the examiner should answer the following:
a.) In April 1993, when the events that led to the appellant being criminally charged with statutory rape occurred, did he exhibit a more or less prolonged deviation from his normal method of behavior?
b.) In April 1993, when the events that led to the appellant being criminally charged with statutory rape occurred, did he, due to disease, interfere with the peace of society? 
c.) In April 1993, when the events that led to the appellant being criminally charged with statutory rape occurred, was he, due to disease, 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?
d.) Was the appellant otherwise insane in April 1993, when the events that led to the appellant being criminally charged with statutory rape occurred?
 
S. HENEKS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Parke