Citation Nr: 20003563 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 17-07 665 DATE: January 16, 2020 REMANDED Whether the Veteran’s character of discharge for the period of August 2, 1989 to October 12, 1994 constitutes a bar to VA benefits for this period of service is remanded. Entitlement to service connection for removal of gallbladder is remanded. Entitlement to service connection for bilateral leg scarring as secondary to diabetes mellitus is remanded. Entitlement to service connection for residual scar gallbladder is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for paraphilia (also claimed as anxiety disorder) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for tinea pedis (also claimed as bilateral athlete’s foot with itching, burning, cracking and thick discolored toe nails) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2, 1979 to August 1, 1989 and from August 2, 1989 to October 12, 1994. The Veteran was granted an honorable discharge for his first period of service. During his second period of service, the Veteran was court-martialed and discharged with a bad conduct discharge. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2015 administrative decision and January 2015 and April 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2017 administrative decision, the RO determined that the Veteran was entitled to an unconditional discharge from his first period of service, and that such period of service was honorable for VA purposes. In October 2019, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. 1. Whether the Veteran’s character of discharge for the period of August 2, 1989 to October 12, 1994 constitutes a bar to VA benefits for this period of service is remanded. The Veteran essentially seeks “veteran” status for his second period of service from August 2, 1989 to October 12, 1994, which ended in a court martial, confinement and a bad conduct discharge. He contends that this character of discharge should not be a bar to VA compensation benefits. The Veteran’s service records indicate the following misconduct: The Veteran was tried at General Court Martial for violations of Article 134, Uniform Code of Military Justice (UCMJ), for committing indecent acts upon three females below the age of sixteen years of age. He was sentenced to reduction to the lowest enlisted pay grade, to forfeit all pay and allowances, to be confined for three years, and to be discharged with a Bad Conduct Discharge. Based on the above, the AOJ has determined that the character of the Veteran’s discharge from service for the period of service from August 2, 1989 to October 12, 1994 is a bar to his entitlement to VA compensation benefits. However, the law provides that such a discharge will not be considered a bar to receipt of VA monetary benefits if it is found that the person was insane at the time of committing the offense(s) causing such discharge or, for a prolonged period of AWOL, if there are “compelling circumstances to warrant the prolonged unauthorized absence.” 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b), (c)(6) and 3.354(b). Specifically, pursuant to 38 U.S.C. § 5303(b), “if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person’s court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated.” For purposes related to the character of discharge, 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; or who interferes with the peace of society; or 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. 38 C.F.R. § 3.354(a). In May 1997, the VA General Counsel discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual’s behavior must deviate from his normal method of behavior could best be resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97, 62 Fed. Reg. 37955 (1997). The opinion provided guidance with regard to the phrases “interferes with the peace of society,” “become antisocial,” “accepted standards of the community,” and “social customs of the community.” Generally, 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. He is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. The term “constitutionally psychopathic” refers to a condition that may be described as an antisocial personality disorder. 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. The Veteran has specifically claimed to be insane at the time that he committed his criminal offenses. The Veteran alleges that he had suffered from psychiatric symptoms in service. The Veteran’s service treatment records, court martial record of trial testimony, and confinement records indicate that the Veteran suffers from paraphilia. The Board notes that the Veteran was evaluated at a “sanity” board for his court martial. However, the service finding applies a different standard than required for a finding of sanity for VA purposes. 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 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. Gardner v. Shinseki, 22 Vet. App. 415 (2009), see also Beck v. West, 13 Vet. App. 535, 539 (2000) (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). Accordingly, given the evidence of record reflecting that the Veteran may have had psychiatric impairment in service, the Board finds that medical development is warranted on the issue of the Veteran’s mental state at the time of the misconduct that led to his October 1994 discharge. 2. Entitlement to service connection for removal of gallbladder is remanded. 3. Entitlement to service connection for bilateral leg scarring as secondary to diabetes mellitus is remanded. 4. Entitlement to service connection for residual scar gallbladder is remanded. 5. Entitlement to service connection for diabetes mellitus is remanded. 6. Entitlement to service connection for paraphilia (also claimed as anxiety disorder) is remanded. 7. Entitlement to service connection for hypertension. is remanded. 8. Entitlement to service connection for tinea pedis (also claimed as bilateral athlete’s foot with itching, burning, cracking and thick discolored toe nails) is remanded. The Veteran asserts that his claimed conditions are related to his period of honorable service. He claims that chest pain noted during his honorable service was related to gastrointestinal problems, hypertension, and/or psychiatric problems. He reported that he was treated for athlete’s foot during his honorable service and also self-treated with creams. He further alleges that symptoms such as nausea, feeling weak, dizzy and faint early in the 1980’s were early symptoms of diabetes. The Veteran should be afforded VA examinations and opinions should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, because a decision on the remanded issue of whether the Veteran’s character of discharge for the period of August 2, 1989 to October 12, 1994 constitutes a bar to VA benefits could significantly impact a decision on the issues of service connection, the character of discharge and service connection issues are intertwined. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After completion of the above, schedule a VA psychiatric examination by an appropriate clinician, to determine the nature of the Veteran’s psychiatric disability and to obtain opinions as to whether the Veteran was insane at the time of the misconduct that led to his October 1994 discharge. After review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s psychiatric disability arose during his period of honorable service from August 2, 1979 to August 1, 1989 or is otherwise related to that period of service? The examiner should explain why or why not, to include addressing the Veteran’s contentions that his complaints of chest pain during service were manifestations of a psychiatric disability. (b) Was the behavior that led to the Veteran’s discharge in October 1994 due to psychiatric disability? (c) Was the Veteran insane at the time he committed the criminal acts, that led to his conviction for violations of the Uniform Code of Military Justice (UCMJ), Article 134 for committing indecent acts upon a female below the age of sixteen years of age and his October 1994 bad conduct discharge? In providing an answer to questions (b) and (c) the examiner is advised that (for the purposes of this matter) an insane person is one who, due to disease, exhibits a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or 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. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. The examiner is asked to consider and specifically address the evidence that the Veteran suffered from paraphilia and that the condition caused his misconduct. The examiner must provide a complete rationale for any opinion offered. If a requested opinion pertaining to service connection cannot be rendered without speculation, the examiner must state in the examination report whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After completing the directives above, schedule the Veteran for a hypertension examination. All appropriate testing should be conducted, and pertinent evidence of record must be made available to and reviewed by the examiner. Following examination of the Veteran and review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension arose during his period of honorable service from August 2, 1979 to August 1, 1989 or is otherwise related to that period of service. The examiner should explain why or why not, to include addressing the Veteran’s contentions that his complaints of chest pain during service were manifestations of hypertension. 4. After completing the records development above, schedule the Veteran for a skin examination. All appropriate testing should be conducted, and pertinent evidence of record must be made available to and reviewed by the examiner. Following examination of the Veteran and review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that a current skin condition arose during his period of honorable service from August 2, 1979 to August 1, 1989 or is otherwise related to that period of service. The examiner should explain why or why not, to include addressing the Veteran’s contentions that he suffered from athlete’s foot during that period of service. 5. After completing the directives above, schedule the Veteran for a diabetes examination. All appropriate testing should be conducted, and pertinent evidence of record must be made available to and reviewed by the examiner. Following examination of the Veteran and review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes arose during his period of honorable service from August 2, 1979 to August 1, 1989 or is otherwise related to that period of service. The examiner should explain why or why not, to include addressing the Veteran’s contentions that symptoms of nausea, feeling weak, dizzy and faint early in the 1980’s were early symptoms of diabetes. 6. After records development is completed, send the claims file to an examiner to obtain an opinion concerning the Veteran’s claim for service connection for gall bladder removal. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s gall bladder disability arose during his period of honorable service from August 2, 1979 to August 1, 1989 or is otherwise related to that period of service. The examiner should explain why or why not, to include addressing the Veteran’s contentions that gastrointestinal complaints and complaints of chest pain during service were manifestations of a gall bladder disability. 7. If the benefits sought on appeal remain denied, furnish a supplemental statement of the case, as appropriate. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.