Citation Nr: 18150168 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-26 111 DATE: November 14, 2018 ORDER New and material evidence has been received to permit reopening the issue of whether the appellant's character of discharge is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits. REMANDED Whether the appellant's character of discharge is a bar to the receipt of VA compensation benefits is remanded. FINDINGS OF FACT 1. In an unappealed administrative decision dated in July 2009, the Regional Office decided that the appellant’s character of discharge was a bar to VA benefits. 2. The evidence received since the July 2009 rating decision relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The July 2009 determination, which found that the appellant’s character of discharge constituted a bar to VA benefits, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. 2. Evidence submitted since the July 2009 determination is new and material and is a basis to reopen the claim. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.12, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active service from June 1966 to March 1976. REASONS FOR REMAND Whether the appellant's character of discharge is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 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). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 (c) applies. 38 C.F.R. § 3.360 (b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). The record shows that the appellant was AWOL from August 12, 1968 to September 8, 1968; September 9, 1968 to December 5, 1968; January 2, 1969 to January 5, 1969; January 8, 1969 to March 24, 1969; March 31, 1969 to July 1, 1969; and July 23, 1969 to February 6, 1976. Because the appellant was discharged under other than honorable conditions as a result of being AWOL for more than 180 days, he is statutorily barred from receiving VA benefits. The payment of VA compensation or pension benefits will not be barred if it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided in law and regulation. 38 U.S.C. § 5303(b). An insane person is 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; 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. The insanity need only exist at the time of the commission of the offense leading to the person’s discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). The appellant has submitted treatment records showing treatment for posttraumatic stress disorder. He asserts that he was diagnosed with post-combat syndrome within a month after returning from being AWOL. Given his assertions and current mental health diagnosis, he should be afforded a VA medical examination to determine whether he was insane at the time of the conduct that led to his discharge. This must be accomplished on remand. The matter is REMANDED for the following action: 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 she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which she 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.” The examiner must review the claims file, to specifically include the appellant’s lay statements and current treatment records. After a review of these records, the examiner should answer the following: a.) When the appellant was AWOL six times, including from July 23, 1969 to February 6, 1976, did he exhibit a more or less prolonged deviation from his normal method of behavior? b.) When the appellant was AWOL six times, including from July 23, 1969 to February 6, 1976, did he, due to disease interfere with the peace of society? c.) When the appellant was AWOL six times, including from July 23, 1969 to February 6, 1976, 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 at the time, at the time of the conduct that led to the appellant’s discharge for being AWOL six times, including from July 23, 1969 to February 6, 1976? JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke