Citation Nr: 21004630 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-20 080 DATE: January 27, 2021 REMANDED The issue as to whether the character of the appellant’s discharge from service is a bar to entitlement to Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from January 1972 to June 1975, and received a bad conduct discharge by reason of the sentence of a general court martial. Historically, a Board hearing was held before the undersigned Veterans Law Judge in November 2018, and a transcript of the hearing is of record. In September 2019, the Board remanded the current appeal for additional development. Following the September 2019 Board remand and prior to a decision in the instant appeal, another hearing was held before the undersigned Veterans Law Judge in October 2020, and a transcript of this hearing is of record. During the October 2020 Board hearing, the appellant and his representative requested a 30-day continuance to obtain additional evidence in support of the claim currently on appeal for the Board to consider. The 30-day continuance has expired, and neither the appellant nor his representative have supplemented the record with any additional evidence. The Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed further below. As noted in the September 2019 Board decision, the character of the Veteran’s discharge from service under other than honorable conditions by reason of the sentence of a general court martial is a statutory and regulatory bar to the receipt of VA benefits. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(2). However, a discharge under such conditions is not a bar to the payment of benefits if it is found that the person was insane at the time of committing the offense resulting in the discharge, or where a general or honorable discharge has been issued through a service board for correction of records established under 10 U.S.C. § 1552. In this case, the issue of whether the appellant was insane at the time of the misconduct resulting in his discharge was raised by the evidence of record and the appellant. Pursuant to the Board’s September 2019 remand instructions, private treatment records were obtained and associated with the claims file in January 2020. In a May 2000 intake evaluation, Dr. D.C.E. indicated that he had seen the appellant at a mental health center when the appellant was an adolescent, as well as before the appellant received in-patient treatment prior to entering service. See also December 2019 VA Form 21-0820 (in-patient private treatment records prior to the appellant’s entry into service have been destroyed). In a March 2005 evaluation, Dr. D.C.E. indicated that the appellant’s “past history…is almost too complex to go into.” See also October 2007 psychiatric evaluation with Dr. J.S.G. In March 2005, Dr. D.C.E. recalled the appellant was brought in for treatment as an adolescent related to a “very abusive family situation.” Dr. D.C.E. also noted a history of head injuries, and reported the appellant had pretty clearly developed a potential for narcotic addiction, which Dr. D.C.E. opined had probably started with prescribed medication originally. Additionally, pursuant to the Board’s September 2019 remand instructions, a VA medical opinion was obtained concerning whether the appellant was insane, as defined by VA regulations, at the time of the misconduct resulting in his discharge under other than honorable conditions. See 38 C.F.R. § 3.354. Dr. R.E.P. opined it was less likely than not (less than 50 percent probability) that the appellant had any mental disease, including psychosis or prodromal symptoms, at the time of the misconduct that resulted in his discharge from service. Dr. R.E.P. indicated the only mental health diagnosis documented in service treatment records was a substance abuse disorder. See VAOPGCPREC 20-97 (behavior which is generally attributable to a particular substance-abuse disorder does not exemplify the severe deviation from the social norm or gross nature of conduct which is generally considered to fall within the scope of the term insanity, and therefore, does not constitute insane behavior under 38 C.F.R. § 3.354 (a)) However, Dr. R.E.P.’s opinion contained no discussion of the lay and medical evidence of record suggesting the appellant’s potential for narcotic addiction may have been related to psychiatric illness and/or head injuries. See also February 1973 VA psychiatric testing (noted in the September 2019 Board remand as indicating alternative psychiatric diagnoses); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). In light of the above, the Board finds remand is necessary to obtain a new medical opinion taking into consideration the entire evidence of record, to specifically include the M. Clinic Department of Psychiatry records associated with the claims file in January 2020. The September 2019 Board decision also afforded the appellant an opportunity to submit any documents related to application(s) made to, or decision(s) made by, the Army Board for Correction of Military Records (ABCMR). To date, it does not appear the appellant or his representative have submitted any ABCMR records. During the October 2020 Board hearing, the appellant indicated he had submitted applications to the ABCMR on numerous occasions. As the appeal is being remanded again, the Board finds an attempt should be made by the agency of original jurisdiction (AOJ) to obtain ABCMR records pertaining to the appellant’s request for upgrade of his character of discharge. Finally, the Board observes that the appellant reported that his sanity had worked against him for most of his life, and that he was in receipt of disability benefits through the Social Security Administration (SSA) for bipolar disorder. See May 2015 VA Form 9. To date, it does not appear that the AOJ has attempted to obtain SSA records. The Board finds remand is necessary to attempt to obtain SSA disability records, as there is a reasonable possibility that such records could help substantiate the appellant’s appeal. Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (VA’s duty to assist includes obtaining relevant Social Security records). The matters are REMANDED for the following action: 1. With any assistance needed from the appellant, attempt to obtain any previous application for SSA disability benefits, to include a copy of any decision awarding benefits and copies of any medical records upon with SSA based its decision. Document all attempts to obtain SSA records, and any responses. 2. With any assistance needed from the appellant, attempt to obtain ABCMR records from appropriate repositories, which pertain to the appellant’s request for upgrade of his character of discharge. Document all attempts to obtain ABCMR records, and any responses. 3. Following the above development, obtain a medical opinion from an appropriate medical professional as to whether it is at least as likely as not (50 percent or greater probability) that the appellant was insane, as defined by VA regulation, at the time of the misconduct that led to his discharge. The medical professional must review the claims file. If the medical professional determines that an opinion cannot be provided without an examination, the appellant should be scheduled for an examination. Based on a review of the record, and if necessary, examination of the appellant, the medical professional should address whether at the time of the misconduct that led to his discharge the appellant exhibited, due to disease: • a more or less prolonged deviation from his normal method of behavior; or • interference with the peace of society; or • so departed (became antisocial) from the accepted standards of the community to which by birth and education he belonged, that he lacked the adaptability to make further adjustment to the social customs of the community in which he resided. A complete medical rationale for all opinions expressed should be provided. 4. Readjudicate the issue on appeal. If the benefit sought remains denied, issue the appellant and his representative a supplemental statement of the case and inform the appellant of his appeal options. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.