Citation Nr: 21062472 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-07 941 DATE: October 7, 2021 ORDER New and material evidence has been received sufficient to reopen the issue of whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) compensation benefits. REMANDED The issue of whether the character of the appellant's discharge constitutes a bar to VA compensation benefits is remanded. FINDINGS OF FACT 1. An unappealed June 1971 decision found the appellant's discharge from service was issued under dishonorable conditions due to willful and persistent misconduct that constituted a bar to VA compensation benefits. The appellant did not submit evidence within one year of the decision, nor did he otherwise timely appeal the determination. 2. New evidence received since the June 1971 decision relates to an unestablished fact necessary to substantiate the claim for benefits and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1971 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the June 1971 decision is new and material sufficient to reopen the issue as to whether the character of the appellant's discharge constitutes a bar to VA compensation benefits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active duty service with the United States Army from January 1968 to October 1970. He received a discharge under other than honorable conditions in lieu of a trial by court-martial due to misconduct. This matter is on appeal from an April 2016 Regional Office (RO) administrative decision. In March 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. 1. New and material evidence has been received sufficient to reopen the issue of whether the character of the appellant's discharge constitutes a bar to VA compensation benefits Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decision makers. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant's service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360(b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an "under other than honorable" conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12(d). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the Veteran was insane. 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 or her 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/she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he/she resides. 38 C.F.R. § 3.354(a). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). The types of behavior identified as insanity in 38 C.F.R. § 3.354(a) do not include a minor episode or episodes of disorderly conduct or eccentricity. A determination of the extent to which an individual's behavior must deviate from his normal method of behavior could best be resolved by adjudicative personnel on a case-by-case basis in light of authorities defining the scope of the term insanity. The phrase "interferes with the peace of society" in the regulation refers to behavior which disrupted the legal order of society. The term "become antisocial" in the regulation refers to the development of behavior which was hostile or harmful to others in a manner which deviated sharply from the social norm and which was not attributable to a personality disorder. The reference in the regulation to "accepted standards of the community to which by birth and education" an individual belonged requires consideration of an individual's ethnic and cultural background and level of education. The regulatory reference to "social customs of the community" in which an individual resided requires assessment of an individual's conduct with regard to the contemporary values and customs of the community at large. VAOPGCPREC 20-97 (May 22, 1997). Behavior which is generally attributable to a substance abuse disorder does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall within the scope of the term insanity, and, therefore, does not constitute insane behavior. Personality disorders, including antisocial personality disorder, do not satisfy the definition of insanity as contemplated at 38 C.F.R. § 3.354. VAOPGCPREC 20-97. In addition, mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). Rather, insane behavior is defined as a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, the person is rendered incapable of managing himself or his affairs, which is a concept akin to the level of incompetency generally supporting appointment of a guardian. VAOPGCPREC 20-97. Insanity must be shown to exist, due to disease, only at the time of the commission of the offense leading to discharge, not that insanity caused the misconduct. Beck v. West, 13 Vet. App. 535, 539 (2000). In other words, there need not be a causal connection between the insanity due to disease and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993) and abrogated on other grounds by Gardner v. Shinseki, 22 Vet. App. 415 (2009); see also VAOPGCPREC 20-97. The RO initially denied the appellant's claim of entitlement to VA benefits in a June 1971 decision that determined his in-service misconduct constituted willful and persistent misconduct under 38 C.F.R. § 3.12(d)(4). Since that denial, the appellant has provided two private opinions regarding his mental health during service that relate his misconduct to posttraumatic stress disorder (PTSD) incurred during combat operations in the Republic of Vietnam. The bar to reopening a claim for new and material evidence is low, and the appellant's evidence pertaining to the impact of his PTSD on his in-service conduct meets that threshold. Therefore, such evidence is new and material, and the claim is reopened. REASONS FOR REMAND 1. The issue of whether the character of the appellant's discharge constitutes a bar to VA compensation benefits is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain an opinion regarding the appellant's sanity, per VA regulation, during his active duty service. As discussed above, the insanity standard of 38 C.F.R. § 3.354(a) is not the same as experiencing a mental health disorder during service. See Beck, 13 Vet. App. at 539. While the private opinions from February 2016 and April 2021 relate the appellant's PTSD to his in-service misconduct, these opinions do not establish that the appellant was insane around the commission of these offenses; however, these opinions, taken in conjunction with the appellant's testimony at his hearing, do raise the question of the appellant's sanity during service. Thus, a VA examination is necessary on remand in order to assess the appellant's mental health condition more thoroughly as applied to the regulatory definition of insanity. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the appellant should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the appellant should be documented in the record. 2. Following completion of the foregoing, schedule the appellant for a VA examination to assess the appellant's mental state leading up to his discharge from service. The examination may utilize telehealth or other electronic means of interviewing if social distancing or pandemic restrictions remain in effect. The examiner should review the entire claims file, including a copy of this remand. After a thorough review of the record, the examiner should discuss the following: (a.) Acknowledge understanding of the following definition of "insanity" per VA regulations: "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." (b.) Is it at least as likely as not (a 50 percent or greater probability) that the appellant was insane, per the aforementioned VA regulation, at the time he committed the offenses leading to his discharge from service? (c.) Please specifically discuss the appellant's contention that he was hospitalized for psychiatric concerns within one year of discharge, as well as any pertinent post-service medical records. The examination report should specifically state that a review of the record was conducted. The specialist should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant and his representative an opportunity to respond, and return the case to the Board. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.