Citation Nr: 1817953 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 07-24 267A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether the character of the appellant's discharge is a bar to basic entitlement to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Eric A. Gang, Attorney ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The appellant served on active duty from October 2001 to September 2002 and was discharged under other than honorable conditions due to misconduct. This case is before the Board of Veterans' Appeals (Board) on appeal of an October 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that determined that the appellant's discharge barred potential receipt of VA benefits. The appellant appeared at a hearing before a Decision Review Officer in April 2007. A transcript of that hearing is of record. In September 2009, when the Board first considered this claim, it remanded the case to obtain documents from the Naval Decision Review Board. The case returned to the Board in November 2010. The Board again remanded the case to allow the appellant's representative to submit argument on his behalf. In March 2012, the Board issued a decision denying the appellant's claim. The appellant appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court approved a Joint Motion for Remand that vacated the Board's March 2012 decision. In October 2013, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) in accordance with 38 U.S.C. § 7109 and 38 C.F.R. § 20.901. In April 2014, the Board remanded the claim to obtain outstanding documents and a VA medical opinion. Then, in November 2014, the Board issued a decision denying the appellant's claim. The appellant appealed that denial to the Court. In July 2015, the Court approved a Joint Motion for Remand that vacated that Board decision. The case was returned to the Board. In June 2016, the Board issued a decision again denying the appellant's claim. The appellant appealed that denial to the Court. In March 2017, the Court approved a Joint Motion for Remand and vacated that Board decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, further development is needed to ensure a complete record prior to adjudicating this case. After the appellant's case was most recently returned to the Board, the appellant indicated that he has been receiving disability benefits from the Social Security Administration (SSA) for his psychiatric disorder since 2006. He submitted copies of SSA letters showing that he was found disabled since December 2005. As his SSA records may be relevant to this claim, the AOJ should attempt to obtain them. Moreover, as there still remains some question as to whether the appellant was insane during active service, the AOJ should obtain another medical opinion based on all of the evidence in the claims file, to include any SSA records obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Contact the SSA and request a copy of the appellant's records. 2. Arrange for the appellant's claims file to be reviewed by a VA psychiatrist who has not previously provided an opinion in this case. The psychiatrist should provide a complete rationale for all conclusions. The psychiatrist should consider all of the evidence in the claims file, to include the prior VA, VHA, and private medical opinions, and respond to the following questions with respect to the appellant's service, in particular his periods of misconduct from March 2002 to September 2002: Did the appellant, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior? Please identify any such evidence with specificity. Did the appellant, due to disease, interfere with the peace of society? Please identify any such evidence with specificity. Did the appellant, due to disease, depart (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? Please identify any such evidence with specificity. 3. Then, readjudicate the claim, with consideration of all of the evidence added to the claims file since the June 2014 supplemental statement of the case. If any decision remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ KELLI A. KORDICH 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).