Citation Nr: 21065068 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-23 965 DATE: October 25, 2021 REMANDED The issue as to whether the character of the Appellant's discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. REASONS FOR REMAND The Appellant served on active duty with the United States Army from March 1990 to February 1992, and the service was characterized as under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which determined the Appellant's military service does not entitle him to VA benefits. The issue as to whether the character of the Appellant's discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. The RO determined that the Appellant was not "insane," as defined by VA regulations, at the time he committed the offenses that led to his separation under other than honorable conditions. This decision was based upon there being no documentation of insanity in the service records and VA medical records. However, the Appellant has asserted that, in the period leading up to his discharge, he was acting out due to undiagnosed posttraumatic stress disorder (PTSD). He noted that his offenses did not begin until after his deployment in support of Operation Desert Storm, where he served as a graves registration specialist. He also noted that he reported depression and/or excessive worry on two occasions during service after returning from deployment. Given the evidence of record and the Appellant's assertions, the Board finds a remand is necessary to obtain a medical opinion as to whether the Appellant was "insane," as defined by VA regulations, at the time of the misconduct that led to his discharge. See Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (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). The matter is REMANDED for the following action: Obtain a medical opinion from a psychologist or psychiatrist as to whether the Appellant had a mental disorder at the time of the misconduct that resulted in his separation under other than honorable conditions. The need for an in-person examination is left to the discretion of the examiner. Following a review of the claims file, and examination of the Appellant if deemed necessary, the psychologist or psychiatrist should offer an opinion as to whether the Appellant was "insane," as defined by VA regulations, at the time of the misconduct that led to his discharge under other than honorable conditions. The examiner should be advised that 38 C.F.R. § 3.354(a) defines "insanity" 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, 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." The term "insanity" refers to a condition involving conduct which deviates severely from the social norm or interferes grossly with the capacity to meet the ordinary demands of life. See VAOPGCPREC 20-97. VA's General Counsel has held that 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). After review of the definition of "insanity," the examiner should respond to the following: a) Did the Appellant, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his misconduct in service? b) Did the Appellant, due to disease, interfere with the peace of society concurrent with his misconduct in service? c) Did the Appellant, due to disease, depart (become antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided concurrent with his misconduct in service? A complete medical rationale for all opinions expressed must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.