Citation Nr: 20009985 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-19 615 DATE: February 6, 2020 ORDER The appellant's character of discharge for the period encompassing his entire service is a bar to the receipt of VA benefits, except for health care benefits under 38 U.S.C., Chapter 17. Eligibility for receipt of 38 U.S.C., Chapter 17 health care benefits for asthma, a left knee condition, hemorrhoids and PTSD based on the period of service from February 9, 2010 to August 22, 2014 is denied. FINDINGS OF FACT 1. A November 2016 administrative decision by VA found that the appellant’s discharge for the period beginning on February 9, 2010 and ending on August 22, 2014 (entire period of service) was issued under other than honorable conditions, thus constituting a bar to eligibility for VA benefits, except for health care benefits under 38 U.S.C., Chapter 17. 2. There is no competent medical evidence of record that establishes that the appellant was insane at the time of the offenses resulting in his other-than-honorable discharge. 3. The most probative medical evidence of record, specifically the January 2017 VA examination report, does not reflect a current diagnosis of asthma. 4. The most probative medical evidence of record, specifically the January 2017 VA examination report, does not reflect a current diagnosis of a left knee condition. 5. The most probative medical evidence of record, specifically the January 2017 VA examination report, does not reflect a current diagnosis of hemorrhoids. 6. The most probative medical evidence of record, specifically the January 2017 VA examination report, does not reflect a current diagnosis of PTSD that conforms to the DSM-5 criteria. CONCLUSIONS OF LAW 1. The character of the appellant’s discharge is a bar to receipt of VA benefits other than health care under 38 U.S.C., Chapter 17. 38 U.S.C. §§ 101, 5303 (2012); 38 C.F.R. §§ 3.1 (n), 3.12, 3.354 (2018). 2. The criteria for entitlement to health care under 38 U.S.C., Chapter 17 for asthma are not met. 38 U.S.C. §§ 101, 5303 (2012); 38 C.F.R. §§ 3.12, 3.360 (2018). 3. The criteria for entitlement to health care under 38 U.S.C., Chapter 17 for a left knee condition are not met. 38 U.S.C. §§ 101, 5303 (2012); 38 C.F.R. §§ 3.12, 3.360 (2018). 4. The criteria for entitlement to health care under 38 U.S.C., Chapter 17 for hemorrhoids are not met. 38 U.S.C. §§ 101, 5303 (2012); 38 C.F.R. §§ 3.12, 3.360 (2018). 5. The criteria for entitlement to health care under 38 U.S.C., Chapter 17 for PTSD are not met. 38 U.S.C. §§ 101, 5303 (2012); 38 C.F.R. §§ 3.12, 3.360 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the United States Army from February 9, 2010 to August 22, 2014. This matter is before the Board of Veterans Appeals (Board) on appeal from a February 2017 rating decision. The appellant’s character of discharge for the period encompassing his entire service is a bar to the receipt of VA benefits and the appeal is denied Legal Criteria 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” as defined for VA benefits purposes. See Holmes v. Brown, 10 Vet. App. 38, 40 (1997) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (holding that, before applying for benefits, a person must demonstrate by preponderance of evidence qualifying service and character of discharge)). 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. § 101 (2); 38 C.F.R. § 3.1 (d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12 (a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12 (a). 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 because of willful and persistent misconduct is to be considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12 (d)(4). This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. Id. 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). 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. 38 C.F.R. § 3.1 (n). 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). 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). Factual Background & Analysis A review of the appellant’s service personnel records shows he was discharged from service on August 22, 2014 for misconduct (serious offense). On February 16, 2014, while on leave from his duty station, the appellant was stopped by Louisiana civilian authorities and was found to be in possession of 23 pounds of marijuana. He was thereafter charged with possession of a controlled substance with intent to distribute. In a November 2016 VA administrative decision, the appellant’s conduct for the period beginning February 9, 2010 to August 22, 2014 (entire period of service) was found to rise to the level of a moral turpitude as contemplated under 38 C.F.R. § 3.12(d)(3). Accordingly, the appellant was adjudged to be ineligible for any gratuitous VA benefits for that period of service. In addition, the evidence does not show, nor has the appellant ever contended that he was insane at the time of committing the offenses resulting in his discharge. See 38 C.F.R. § 3.12 (b). He did not offer such a defense in service, and there is no indication in the service medical records or otherwise of the existence of any insanity at the time of the commission of the offenses leading to his discharge. Therefore, the insanity exception to the bar of benefits based on discharge under dishonorable conditions is not applicable in this case. The Board acknowledges the appellant’s November 2016 statement where he expressed contrition over the events which led to his discharge. The Board has also considered the November 2016 character statement submitted on the appellant’s behalf by C.A.G., Cpt., SC. Unfortunately, VA is bound by the service department’s determination for the reason of a service member’s separation from active service and VA is not at liberty to change that determination. Duro v. Derwinski, 2 Vet. App. 530 (1992). Any disagreement that the appellant may have with his discharge classification must be raised with the Board for Correction of Military Records. Harvey v. Brown, 6 Vet. App. 416, 424 (1994). Based on a review of the foregoing evidence, the Board concludes that the appellant’s military service ended with an other-than-honorable discharge due to willful and persistent misconduct; this period of service is dishonorable for VA purposes and is a bar to his receipt of VA benefits. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Service connection for treatment purposes only under 38 U.S.C., Chapter 17 Legal Criteria Health care and related benefits authorized by Chapter 17 of title 38 U.S.C. shall be provided to certain former servicepersons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty. 38 C.F.R. § 3.360 (a). With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions. Such 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). In this case, the appellant has not been found to have any of the bars listed in 38 C.F.R. § 3.12 (c) due to his other than honorable discharge, but he has, as discussed, been found to have committed an act of moral turpitude as contemplated under 38 C.F.R. § 3.12 (d)(3). As also noted, this finding does allow for the appellant to still be eligible for medical treatment for a current disability that is found to have been incurred or aggravated in his active duty service. In making determinations of health-care eligibility, the same criteria will be used as is now applicable to determinations of service incurrence and in line of duty when there is no character of discharge bar. 38 C.F.R. § 3.360 (c). Accordingly, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Asthma With respect to the Veteran’s claimed asthma, a review of the service treatment records (STRs) shows that he was told he had exercise-induced asthma during service. He was prescribed an inhaler in November 2013 to be used before PT and exertional activity. A definitive diagnosis for asthma was not noted. The Veteran underwent a pulmonary function test (PFT) in January 2017. After reviewing the results of the PFT, the examiner found insufficient evidence to warrant or confirm a diagnosis of asthma. The PFT showed “normal spirometry, lung volumes, MVV and DLCO with no BD response.” There is no medical evidence of record which supports a finding that the Veteran is currently diagnosed with or is being treated for asthma. Consequently, the January 2017 VA examination report is the most probative evidence of record. Without evidence of a current disability, the criteria for service connection are not met. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, because the criteria for service connection are not met, 38 U.S.C., Chapter 17 health care benefits cannot be awarded for asthma incurred or aggravated by his active service. See 38 C.F.R. §§ 3.12 (c), 3.360. Left knee condition The Veteran’s STRs show a complaint for an episode of knee pain during service. A January 2017 VA examination did not return a diagnosis for a left knee condition. X-rays were negative for degenerative joint disease or clinically significant findings. Any observed degenerative changes were noted to be due to the natural aging process. There is no medical evidence of record which supports a finding that the Veteran is currently diagnosed with or is being treated for a left knee condition. Consequently, the January 2017 VA examination report is the most probative evidence of record. Without evidence of a current disability, the criteria for service connection are not met. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, because the criteria for service connection are not met, 38 U.S.C., Chapter 17 health care benefits cannot be awarded for a left knee condition incurred or aggravated by his active service. See 38 C.F.R. §§ 3.12 (c), 3.360. Hemorrhoids STRs reveal that the Veteran was seen for hemorrhoid treatment in December 2010. His past medical and surgical history shows a hemorrhoidectomy in March 2012, the Veteran developed rectal bleeding (anemia) as a result. A January 2017 VA examination report indicates no current diagnosis for any condition of the rectum or anus. No residuals from the March 2012 hemorrhoidectomy were noted. There is no medical evidence of record which supports a finding that the Veteran is currently diagnosed with or is being treated for hemorrhoids. Consequently, the January 2017 VA examination report is the most probative evidence of record. Without evidence of a current disability, the criteria for service connection are not met. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, because the criteria for service connection are not met, 38 U.S.C., Chapter 17 health care benefits cannot be awarded for hemorrhoids incurred or aggravated by his active service. See 38 C.F.R. §§ 3.12 (c), 3.360. PTSD Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed stressor in service. 38 C.F.R. § 3.304 (f). Under the revised (effective July 12, 2010) 38 C.F.R. § 3.304 (f)(3): If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. A January 2017 VA examination report indicates that a qualified mental health professional determined that the Veteran did not endorse having symptoms necessary to support a diagnosis of PTSD pursuant to the DSM-5 criteria. No other diagnoses for a psychiatric condition were noted other than “problems related to other legal circumstances.” The detailed examination report reflects familiarity with the Veteran’s history, include citation to clinical findings, and identify the DSM criteria for a diagnosis of PTSD that are not met. The VA examiners’ opinions are the most probative (medical) evidence of record in this matter and are persuasive. The Veteran’s opinion that he has PTSD is not probative evidence in the matter; the diagnosis of PTSD is a complex medical question which requires medical expertise (regarding whether the constellation of symptoms shown, and any credible stressor identified support such diagnosis). He is a layperson, does not profess to have medical expertise; and does not cite to adequate competent (medical opinion, text, or treatise) supporting evidence. A threshold legal requirement for substantiating a claim of service connection is that there must be a valid diagnosis of the disability for which service connection is sought. See Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). To be valid for the purpose of establishing service connection, a diagnosis of PTSD must be in accordance with the DSM-5. 38 C.F.R. § 3.304 (f). As the record does not show a diagnosis of PTSD in accordance with DSM-5, this threshold requirement is not met. Accordingly, service connection for PTSD is not warranted. Consequently, because the criteria for service connection are not met, 38 U.S.C., Chapter 17 health care benefits cannot be awarded for PTSD incurred or aggravated by his active service. See 38 C.F.R. §§ 3.12 (c), 3.360. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.