Citation Nr: 20009989 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 17-61 495 DATE: February 6, 2020 REMANDED The issue of whether the character of the Appellant's discharge is a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The Appellant had active duty service with the United States Marine Corps from October 1975 to February 1977. He received a discharge under other than honorable conditions in lieu of trial by court-martial. The instant matter is on appeal from a January 2017 decision. The Board remanded this issue in May 2019 in order to obtain a medical opinion regarding the Appellant’s psychiatric condition during military service. 1. The issue of whether the character of the Appellant's discharge is a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded. The Board regrets the additional delay, but remand is again necessary in order to obtain a more thorough medical opinion regarding the Appellant’s claim of insanity during service. The Appellant is seeking compensation for an acquired psychiatric disorder, hearing loss, and tinnitus, which he contends are service-related; however, he was discharged from active service with an other than honorable discharge. The character of his discharge, with limited exception, is a bar to VA benefits. In contesting the character of his discharge and entitlement to VA benefits, the Appellant asserts that he was insane at the time he committed the offenses leading to his discharge from service. Insanity is a defense to all statutory and regulatory bars based on character of discharge and is potentially applicable in this case only in so far as it would negate the Appellant’s ability to willfully commit the misconduct offenses in question. The burden is on the claimant to submit competent medical evidence that he was insane at the time of his offenses. In this case, the Appellant provided a significant mental health history of multiple psychiatric diagnoses. During his military service, he was diagnosed with inadequate personality structure disorder. After discharge, he was diagnosed with schizophrenia. During the September 2019 VA examination, he reported potentially significant symptomatology during military service that was not adequately addressed by the examiner. He stated that he did not know why he continued to leave the military, earning a number of unauthorized absences during service. He endorsed visual hallucinations during service, which have more recently been remediated by psychiatric medication. The Appellant also reported paranoia during service, stating that he would hide in closets to avoid formation, and he frequently worried about going to war and being killed. The details of his childhood abuse and acts of violence by parental figures aligns with details provided during the December 1976 in-service psychiatric evaluation. Unfortunately, the September 2019 examination report failed to address two of the three prongs of insanity as requested by the Board in its May 2019 remand instructions. 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 or her normal method of behavior; or who interferes with the peace of society; or who has departed (become antisocial) from the accepted standards of the community to which by birth and education he/she belongs so 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) (emphasis added). The examination report addressed the first prong of the regulations, but failed to address the remainder, which the Board specifically requested in its remand instructions. Accordingly, the September 2019 medical opinion is incomplete, and an addendum is necessary on remand in order to obtain a thorough opinion regarding the Appellant’s mental state during military service that comports with previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Contact the Appellant in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Appellant, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Appellant should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Appellant should be documented in the record. 3. Following completion of the foregoing, obtain an addendum opinion to assess his mental state leading up to his discharge from service. The examiner should review the entire claims file, including a copy of this remand and the September 2019 examination. A new examination may be ordered if the examiner deems it necessary. After a thorough review of the record is complete, the examiner must respond to the following: (a.) Acknowledge understanding of the following definition of “insanity” per VA regulations: “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.” (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Appellant was insane, per the aforementioned VA regulation, at the time he committed the offenses leading to his discharge from service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Appellant an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, Associate Counsel 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.