Citation Nr: 20034491 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 14-27 217 DATE: May 18, 2020 REMANDED The issues of entitlement to service connection for food allergies and entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), are remanded. REASONS FOR REMAND The Veteran had honorable active service from January 17, 2002 to November 10, 2004 and other than honorable service from November 11, 2004 to November 24, 2009. A December 2012 Administrative Decision determined that the second period of service was a bar to VA compensation benefits. See 38 C.F.R. § 3.12(d). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In May 2018, the Board denied the Veteran’s claim of entitlement to service connection for hypertension and food allergies, finding that these conditions were not incurred during a period of service for which the Veteran was eligible for VA compensation purposes. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Partial Remand (JMPR) requesting that the Court vacate the Board’s decision and remand the case for readjudication. In November 2019, the Court granted the JMPR and returned the case to the Board for further development and readjudication in compliance with the directives specified. In the May 2018 decision, the Board noted that the September 2008 service treatment notes documented hypertension screenings and a diagnosis of essential hypertension for which he was prescribed medications. The Board found that the Veteran experienced high blood pressure and was diagnosed with essential hypertension during a period of dishonorable service for VA compensation purposes (from November 11, 2004 to November 24, 2009). Further, the Board noted that service treatment records were absent for complaints, treatments, or diagnoses of any food allergies during his period of honorable service from January 17, 2002 to November 10, 2004. Service treatment records during the period of dishonorable service were also absent for diagnoses or treatment for food allergies, but the Veteran reported an allergy to fruit at his August 2008 separation examination. The Board found that the weight of the evidence demonstrated no accident, injury, event, or disease during a period of honorable service that may be related to the currently diagnosed essential hypertension or to food allergies. The Board explained that the Veteran’s Form DD 214 shows that for the period of service from November 11, 2004 to November 24, 2009 the Veteran was discharged under other than honorable conditions. In a December 2012 Administrative Decision, VA determined that no VA benefits are payable for this period. Additionally, service treatment and personnel records did not show nor did the Veteran contend that he was insane at the time of committing the offense causing his discharge from service. Therefore, the Board found that service connection was statutorily barred for both hypertension food allergies based on service during the period of dishonorable service from November 11, 2004 to November 24, 2009. The parties to the JMPR agreed that the Board failed to provide any reasons or bases for its finding that the evidence did not show that Veteran “was insane at the time of committing the offense causing his discharge from service.” A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a statutory or regulatory bar to the payment of benefits unless 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. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Thus, insanity is a defense to all statutory and regulatory bars. The Veteran’s Form DD 214 indicated that he had received “other than honorable enlistment from November 11, 2004 to November 24, 2009 with a narrative reason of ‘in lieu of trial by court-martial’.” The JMPR found that the record contains evidence pertinent to whether the insanity exception applies that the Board did not address. The Veteran was diagnosed with PTSD in August 2005 by a private psychiatrist. In July 2008, the Veteran presented for a mental health evaluation scheduled in conjunction with proceedings initiated for an administrative separation. The examiner noted that psychological testing revealed “significant [symptoms] of PTSD. [He] reports struggling with these [symptoms] since returning from 2005 OIF deployment and noted he had never experiend [sic] them prior to deployment.” The examiner further noted that “the clinical interview did reveal significant mental health issues which indicates that the S[ervice] M[ember] may not meet medical retention standards[.]” The July 2008 mental health evaluation report also notes that the Veteran was “referred for a Fitness for Duty Evaluation through psychiatry based on his current report of [symptoms] and previous contact with psychiatry.” At an April 2011 hearing before the RO, the Veteran submitted a written statement in which he explained how after returning from Iraq he “was broken. I was angry, my judgement was clouded by hatred by what I had become, and I wanted revenge for what I had become.” Accordingly, a medical opinion is needed to determine whether due to mental disease, the Veteran met VA’s definition of insanity at the time that he committed the offenses that led to his court-martial conviction and resulting discharge. The examiner must specifically address the aforementioned evidence and other evidence in the claims file pertaining to the Veteran’s mental health in service. In addition, a remand is warranted for the Board to ensure compliance with 38 C.F.R. § 3.354(b). Section 3.354(b) provides that when determining whether the veteran was insane at the time of an offense leading to his court-martial or discharge, the adjudicator “will base its decision on all the evidence procurable relating to the period involved[.]” 38 C.F.R. § 3.354(b). During his January 2017 Board hearing, the Veteran’s representative requested VA to obtain the trial transcript from the Veteran’s military court-martial proceeding. The Board member responded with “We could try.” On remand, the RO will ensure that efforts are made to obtain the transcript if it determines that it cannot make a favorable insanity finding on the record before it. A remand is also required because the record raises a theory of entitlement to service connection for hypertension as secondary the Veteran’s service-connected PTSD. Here, during his January 2017 Board hearing, the Veteran testified that hypertension could be caused by the PTSD, for which the Board granted service connection in the May 2018 decision. Further, an August 2005 service medical record contained a handwritten instruction of “5-day [blood pressure] check. Stress due to deployments.” Accordingly, a medical opinion is needed to determine entitlement to service connection for hypertension as secondary to service-connected PTSD. The matters are REMANDED for the following actions: 1. Obtain the trial transcript form the military court-martial proceedings. If necessary, contact the Veteran to identify any other appropriate repositories or locations from which to seek the trial transcript. 2. Schedule the Veteran for an examination and retroactive medical opinion by a psychiatrist or psychologist, to determine the nature and severity of any/all mental disease(s) present at the time of the misconduct offenses committed by the Veteran during the period of other than honorable service from November 11, 2004 to November 24, 2009 for which he was convicted by general court-martial. The examiner should base his or her determination on all the evidence within the claims file as well as a thorough history obtained from the Veteran. The examiner is then asked to determine whether at the time of any of the offenses summarized in the Veteran’s service personnel records and court-martial documents, the Veteran: (a.) Exhibited, due to any identified mental disease, a more or less prolonged deviation from the normal method of behavior? (b.) Interfered with the peace of society? (c.) Had 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 resided? (d.) The examiner must specifically address the findings of the July 2008 mental health evaluation report and the Veteran’s lay statements. Solely for the purposes of this examination, assume the credibility of the Veteran’s statements. 3. Schedule the Veteran for examination(s) to determine the nature and etiology of his hypertension and food allergies. (a.) Is it at least as likely as not that the Veteran’s food allergies are related to an in-service injury, event, or disease, specifically identifying relationship to an event occurring during the honorable period of service from January 17, 2002 to November 10, 2004, or during the period of other than honorable service from November 11, 2004 to November 24, 2009? (b.) Is it at least as likely as not that the Veteran’s hypertension are related to an in-service injury, event, or disease, specifically identifying relationship to an event occurring during the honorable period of service from January 17, 2002 to November 10, 2004, or during the period of other than honorable service from November 11, 2004 to November 24, 2009? (c.) Is it at least as likely as not that the Veteran's hypertension was proximately caused or aggravated by his service-connected PTSD? The examiner must address the August 2005 service medical record containing a handwritten instruction of “5-day [blood pressure] check. Stress due to deployments.” The term “aggravation” in this context means to worsen beyond normal progression. (Of note, relationship to the dishonorable period of service may or may not be a bar to benefits depending on the outcome of the insanity opinion also requested in this remand). A rationale for any opinions expressed should be set forth. If the clinician cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.