Citation Nr: 20039966
Decision Date: 06/11/20	Archive Date: 06/11/20

DOCKET NO. 13-35 453
DATE: June 11, 2020

REMANDED

The issue of whether the character of the appellant’s discharge from service is a bar to VA compensation benefits is remanded.

REASONS FOR REMAND

The appellant had active service in the Marine Corps from August 1967 to August 1971. 

The appeal originates from an April 2013 administrative decision of a Department of Veterans Affairs (VA) Regional Office.

The appellant appeared for a hearing in June 2014 before a Veterans Law Judge who is no longer at the Board.  In November 2017, the appellant was afforded a hearing before the undersigned. 

The issue of whether the character of the appellant’s discharge from service is a bar to VA compensation benefits is remanded.

In an October 2019 memorandum decision, the Court of Appeals for Veterans Claims vacated and remanded the February 2018 Board decision that found the character of the appellant’s discharge is a bar to VA compensation benefits.  

The Court found that the Board erred in failing to account for November 2017 hearing testimony in which the appellant described ostensible in-service psychological symptoms that caused his alcohol abuse.  The Court also found that the Board did not consider whether the evidence showed that the appellant’s alcohol abuse was secondary to organic disease or disability.  Specifically, the Court noted that the Board relied on a September 2016 VA examination that does not fully address these issues.  Accordingly, remand is necessary for an addendum opinion.

The matter is REMANDED for the following action:

Request an addendum opinion from the September 2016 examiner.  If the examiner is no longer available, conduct a new mental disorders examination. If a new examination is directed, the examiner MUST REVIEW the prior examination in conducting the new examination and report its review in any report generated as a result of this remand. The examiner is asked to address the following:

1. Was the behavior that led to the appellant’s discharge under conditions other than honorable due to psychiatric disability?

2. Was the appellant insane at the time he committed the acts that led to his discharge? The examiner is advised that under the law, 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 departed (become antisocial) from the accepted standards of the community to which by birth and education he 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).

3. Was the appellant’s alcohol abuse secondary to organic disease or disability?

Thereafter, follow all appropriate appellate procedures. 

 

 

VITO A. CLEMENTI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Alhinnawi

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.