Citation Nr: 20056321 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 19-01 990 DATE: August 26, 2020 REMANDED Whether the character of the Appellant's service is a bar to receiving VA benefits is remanded. REASONS FOR REMAND The Appellant served on active duty from August 2011 to May 2013, at which time he was discharged under other than honorable conditions (OTH). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 administrative decision denying the appellant’s claim. This matter was last before the Board in September 2019 where it was remanded for additional development, to include affording the Appellant a medical examination to assess his sanity at the time of the infractions leading to his unfavorable discharge. A January 2020 Compensation and Pension Examination Inquiry document indicates that a medical opinion was requested to satisfy the aforementioned Remand directive, but the VA examination was cancelled because the "Veteran failed to RSVP." The June 2020 SSOC reiterated this information without further elaboration, i.e. whether there was actual written correspondence sent to the Appellant and/or his representative. See June 2020 SSOC (“We received notification from the Dallas VAMC that you failed to RSVP for your scheduled examination”). With regards to cancelling the examination because the Appellant failed to RSVP, the Board can discern no authority supporting this action, as there is no requirement in the applicable regulation that the Appellant confirm that he will attend a scheduled examination. Moreover, while there is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including in mailing notice, a copy of the VA examination notice letter does not appear to be of record. Therefore, in an effort to ensure compliance with the duty to assist, the Board will remand the claim in order for the AOJ to attempt to schedule the Veteran for an examination to determine whether the Appellant was insane at the time of the infractions underlying his OTH discharge. Furthermore, should the Appellant refuse to participate, acquiring a medical opinion based solely upon the record would also satisfy the required development. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Appellant’s claim, to include updated VA and non-VA treatment records. 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. Document all attempts to assist the Appellant with the procurement of these records 2. After any additional records are associated with the claims file, schedule the Appellant for a VA psychological examination. Concerning the scheduling, all attempts must be properly documented and associated with the record, to include any written notification to the Appellant and his representative. Whether or not the Appellant participates, an opinion is to be obtained as to whether the Appellant was insane for VA purposes at the time of the misconduct underlying the May 2013 separation from service, including the following UCMJ infractions prosecuted at the January 2013 summary court martial and assorted aggravating offenses: • positive result of tetrahydrocannabinol via August 2012 urinalysis; • failure to take corrective action in September 2012; • wrongful use of controlled substance and false official statement in October 2012; • violating a general order by wrongfully possessing Spice (a synthetic cannabinoid drug) on December 5, 2012; • wrongfully using marijuana on December 5, 2012; • wrongfully possessing marijuana on December 5, 2012, and; • engaging in drunk and disorderly conduct on December 5, 2012. The examiner is informed that for VA purposes “[a]n insane person is defined as one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, (1) a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) 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. 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.” After a review of the claims file the examiner should answer the following: a.) At the time of the above-listed infractions of the UCMJ and assorted misconduct between August 2012 and December 2012, did the appellant exhibit a more or less prolonged deviation from his normal method of behavior? b.) At the time of the above-listed infractions of the UCMJ and assorted misconduct between August 2012 and December 2012, did the appellant, due to disease interfere with the peace of society? c.) At the time of the above-listed infractions of the UCMJ and assorted misconduct between August 2012 and December 2012 was the appellant, due to disease 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? d.) Was the appellant otherwise insane at the time of the above-listed infractions of the UCMJ and assorted misconduct between August 2012 and December 2012? A rationale should be provided for the opinions which incorporates a discussion of the Appellant’s diagnosis of schizophrenia shortly after discharge in June 2014, and discussion of Appellant’s lay statements. 3. Readjudicate the claim. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.