Citation Nr: 20041256 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 14-32 140 DATE: June 17, 2020 REMANDED Whether the Appellant’s character of discharge constitutes a bar to VA compensation benefits is remanded. REASONS FOR REMAND The Appellant served on active duty from June 1969 to July 1971 and was discharged under conditions other than honorable. This appeal comes before the Board of Veterans Appeals (Board) from a September 2013 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In his August 2014 substantive appeal, the Appellant requested to testify before a Veterans Law Judge appearing by videoconference. A Board videoconference hearing was scheduled for January 11, 2016, with the Appellant appearing at the Portland, Oregon RO. However, the Appellant failed to report for his scheduled hearing. There is no indication in the file that the Appellant had good cause for failing to report for his hearing, or that he or his representative attempted to reschedule his appointment at any time. Accordingly, in an April 2018 remand, the Board found that it had fulfilled its duty to offer the Appellant the opportunity to testify. In January 2016, the Appellant’s representative provided waiver under 38 C.F.R. §§ 19.37 and 20.1304 of all evidence received by the agency of original jurisdiction subsequent to the August 2014 statement of the case. The RO had characterized the issue of whether the Appellant’s COD is a bar to VA compensation benefits as one involving new and material evidence to reopen the previous, 1972, administrative decision which held the Appellant’s COD was a bar to benefits. However, in this case, relevant service personnel records were received in 2012 that were not of record at the time of the 1972 administrative decision. Accordingly, the case was reconsidered under 38C.F.R. §3.156(c), and the claim was recharacterized as reflected on the first page of this decision. In April 2018, the Board remanded the appeal for further development. Specifically, the Board directed the RO to obtain additional service treatment records and to obtain an opinion on whether the Appellant was insane, under 38 C.F.R. § 3.12(b), at the time of his misconduct. 1. Whether the Appellant’s character of discharge constitutes a bar to VA compensation benefits is remanded. The Appellant seeks entitlement to VA compensation benefits. However, his DD Form 214 reveals that his discharge from active duty ending in July 1971 was characterized as under other than honorable conditions by reason of Chapter 10, AR 635-200, SPN 246 in lieu of trial by courts-martial for charges involving being absent without leave from 6 January 1971 to 14 February 1971, and from 1 March 1971 to 7 June 1971. See Service Personnel Records (rec’d 4/12/1972), p. 12. The Appellant is seeking to be declared eligible for VA benefits. 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. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). “The term veteran means 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). 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 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). There are two types of COD bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38C.F.R. §3.12(c) and regulatory bars listed in 38 C.F.R. § 3.12(d). In this case, the applicable regulations are 38 C.F.R. § 3.12(c) and 38C.F.R. §3.12(d). The former provides that benefits are not payable where the former service member was discharged or released by reason of the sentence of a general court-martial; as a deserter; or by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(2), (4) and (6). The latter provides that a discharge because of willful and persistent misconduct, including a discharge under other than honorable conditions, is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(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.” 38 U.S.C. § 5303(b). 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); see Zang v. Brown, 8 Vet. App. 246, 253 (1995) (holding that the phrase “due to disease” applies to all three circumstances in § 3.354(a)). 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. Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009); see Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55; 38 C.F.R. § 3.354(a). When a rating agency is concerned with determining whether a Veteran was insane at the time that he committed an offense leading to his courts-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply the definition in 38 C.F.R. § 3.354(a), (b). The Board notes as stated above that the Appellant was discharged under conditions other than honorable, and a 1972 VA administrative decision termed his service dishonorable for VA purposes, thus rendering the Appellant ineligible for VA benefits. In the April 2018 Board remand, the Board directed the RO to schedule a VA examination with a certified mental health professional to evaluate the Appellant and to provide an opinion on whether he was insane, under 38 C.F.R. § 3.354(a), at the time of his misconduct. The RO attempted to schedule the Appellant for May 2018 and December 2019 examinations, for which he did not RSVP and did not attend. The RO cancelled the examination requests and notified the Appellant and his power of attorney. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Title 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655(a). The United States Court of Appeals for Veterans Claims (Court) has held that “[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that the RO has complied with its April 2018 Remand. However, the Board finds that the Appellant should be given an additional opportunity to support his claim. The claims file reflects that, during this appeal, the Appellant has been homeless. No correspondence has been received from the Appellant for over two years. Additionally, attempts to contact the Appellant telephonically have been unsuccessful. Based on the foregoing, the Board finds that the RO should attempt to schedule the Appellant for another VA examination. The RO should contact the Appellant and his power of attorney regarding the VA examination. If the RO is unable to contact the Appellant, the RO should request an opinion from a VA mental health clinician based on the evidence of record. The Appellant is hereby notified that it is his responsibility keep the AMC/RO apprised of his current address, to report for any examination, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655; Wood, 1 Vet. App. at 193 (noting that the VA's duty to assist the Veteran is not a one-way street; the Veteran also has an obligation to assist in the adjudication of his claim). The Appellant should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Appellant's claim. 2. Arrange for the Appellant to undergo a VA mental status examination, but in the sense that a “retrospective” medical opinion is needed concerning whether he was legally insane at the time of the offenses leading to his eventual discharge from the military under conditions other than honorable. See Chotta v. Peake,22 Vet. App. 80 (2008) (noting the duty to assist may include development of medical evidence through a retrospective medical evaluation when there is a lack of medical evidence for the time period at issue). If the Appellant is unavailable, obtain an opinion from a VA mental health clinician based on the evidence of record. All indicated tests and studies are to be completed. The claims file, including a complete copy of this decision and remand, must be made available to and reviewed by the examiner in conjunction with the examination. If possible, a detailed history must be obtained with respect to the Appellant’s situation, state of mind, and behavior during his active military service, particularly around the time of the offenses leading to his eventual discharge. Thereafter, the examiner must specifically address the following: a). Did the Appellant exhibit a mental disease or disorder at the time of the offenses leading to his eventual discharge or at any other time during his military service? b). Did the Appellant, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior at the time of the offenses leading to his discharge, or at any other time during his military service? c). Did the Appellant, due to disease, interfere with the peace of society at the time of the offenses leading to his discharge or at any other time during his military service? d). Did the Appellant, due to disease, become anti-social or so departed 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 at the time of the offenses leading to his eventual discharge, or at any other time during his military service? In reaching his or her conclusions, the examiner must consider and address the Appellant’s lay statements (both from the detailed history taken during the examination and elsewhere in the claims file) concerning his situation, state of mind, and behavior during service, and in particular around the time of the offenses leading to his eventual discharge. The examiner is asked to discuss the underlying reasoning or rationale for his or her opinion, including preferably citing to relevant evidence, supporting factual data, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. The absence of indication of contemporaneous medical evidence in the service treatment records cannot, alone, serve as the basis for a negative opinion. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. Thereafter, if any benefits sought remain denied, provide a Supplemental Statement of the Case to the Appellant and his representative and return the appeal to the Board for appellate review, after the Appellant has had an adequate opportunity to respond. T. MAINELLI 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.