Citation Nr: 21069692 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-28 797 DATE: November 19, 2021 REMANDED The issue of whether the character of appellant's discharge from service constitutes a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. REFERRED ISSUES Health care and related benefits authorized under 38 U.S.C. Chapter 17 shall be provided to certain former service members with administrative discharges under other than honorable conditions for any disability incurred in or aggravated during active military, naval, or air service in the line of duty. 38 C.F.R. § 3.360(a). In this case, the agency of original jurisdiction (AOJ) has not yet adjudicated the appellant's service connection claims for treatment purposes only under 38 U.S.C. Chapter 17. See November 2002 VA Form 21-526; see also April 2014 VA Form 21-4138. As such, the appellant's service connection claims, for treatment purposes only under 38 U.S.C. Chapter 17, are referred to the AOJ for appropriate action. REASONS FOR REMAND The appellant served in the United States Marine Corps from December 1994 to February 1998. The issue of whether the character of appellant's discharge from service constitutes a bar to the receipt of VA compensation benefits is remanded. Historically, the appellant submitted a claim for VA disability compensation benefits in November 2002. See November 2002 VA Form 21-526. In July 2003, an administrative decision issued by the AOJ determined that the appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct, constituting a bar to VA compensation benefits. See 38 C.F.R. § 3.12(d)(4); see also July 2003 VA notification letter. It does not appear that the appellant was advised of his procedural and appellate rights concerning the determination that his character of discharge is a bar to VA compensation benefits. However, the Board notes that following the July 2003 administrative decision, VA received service records that existed at the time of that decision, which contain additional relevant information pertaining to the issue of whether the character of the appellant's discharge is a bar to VA compensation benefits. See June 2019 VA notification letter. In contrast to the general rule, which only permits claims to be reopened on the submission of new and material evidence, a veteran's claim will be reconsidered when relevant service department records are newly associated with the veteran's claims file. See 38 C.F.R. § 3.156(c). In light of the relevant service records that were newly associated with the appellant's claims file after the July 2003 administrative decision, the Board will reconsider the issue of whether the appellant's discharge under other than honorable conditions is a bar to VA compensation benefits. Under 38 C.F.R. § 3.12(d)(4), a discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious. The term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. See 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. In this case, the appellant's attorney contends that the misconduct resulting in the appellant's discharge under other than honorable conditions was not willful because the appellant was suffering from debilitating alcoholism at the time of the offenses. See July 2021 Board hearing transcript. Alternatively, the appellant's attorney contends that the appellant's alcoholism was so severe at the time of the offenses in service that it meets VA's definition of insanity. Id.; see also 38 C.F.R. § 3.354(a) (defining insanity). Here, the appellant's enlistment examination indicates that questioning by the service treatment provider revealed the appellant had a history alcohol abuse. See May 1994 Report of Medical History; see also July 1995 Narrative Summary, Naval Addictions Rehabilitation and Education Department (NARED) (the appellant reported legal problems in 1990, 1991 and 1993 due to public intoxication); see also December 1997 Administrative Discharge Board hearing (appellant reported he started drinking in high school and that he required a waiver to join the service). Nevertheless, the appellant was found qualified for active service. See also Record of Military Processing (moral waiver approved by the Commanding General, Marine Corps Recruit Depot in December 1994). The appellant completed basic training and was transferred to school for his military occupational specialty on April 1, 1995. See Chronological Record. On April 6, 1995, the appellant received nonjudicial punishment (NJP) for drunk and disorderly conduct that occurred on April 1, 1995, which involved pushing and fighting the base guard, failing to obey a direct order from the guard chief to stop kicking the door and seats of the guard vehicle, and pushing and kicking the Marines escorting/helping him to the barracks. See Offenses and Punishments. In June 1995, the appellant was referred by his command for hospitalization with a blood alcohol concentration of 0.4. The appellant was diagnosed with alcohol dependence and admitted to NARED for 28 days for treatment. See July 1995 Narrative Summary. In October 1997, the appellant was recommended for administrative discharge for a pattern of misconduct. The appellant's commanding officer noted that, over the span of the appellant's nearly three years on active duty, he had received multiple formal counseling entries; four nonjudicial punishments (for offenses involving drunk and disorderly conduct, unauthorized absence, and unfitness for duty due to excessive alcohol consumption); and a conviction at summary court martial (for offenses involving failure to go at the time prescribed to his appointed place of duty, and unfitness for duty due to excessive alcohol consumption). While the recommendation for administrative discharge was pending, the appellant also received NJP in January 1998 for driving under the influence on December 6, 1997. In January 1998, an Administrative Discharge Board unanimously recommended the appellant be discharged with a characterization of service under other than honorable conditions. In February 1998, the commanding general directed the appellant be separated, primarily by reason of misconduct due to a pattern of misconduct, with a characterization of service under other than honorable conditions. See also DD Form 214. In November 2014, the appellant's former representative argued that the appellant's use of alcohol and alcohol related incidents prior to deploying overseas did not demonstrate willful and persistent misconduct. The appellant's former representative argued that the appellant was drinking with his fellow Marines, and that this was considered part of the military experience. See 38 C.F.R. §§ 3.1(n), 3.301(c)(2). The appellant's former representative argued that the appellant was exposed to traumatic events while deployed with a Marine Expeditionary Unit to Okinawa; during his assignment on a Joint Task Force in Yuma, Arizona; and during his participation in Operation Vigilant Sentinel and Operation Southern Watch. See Individual Deployment Record (documenting service in Okinawa from November 1995 to May 1996, and in Yuma, Arizona from August through September 1996); see also Combat History (documenting the appellant's participation in Operation Vigilant Sentinel and Operation Southern Watch from November 1996 to February 1997). In a November 1, 2014 statement, the appellant described the claimed stressors and traumatic events he was exposed to in service. The appellant's former representative argued that the appellant turned to alcohol as a method of self-medication to treat undiagnosed symptoms of posttraumatic stress disorder (PTSD) related to his exposure to traumatic events. In connection with the appellant's claim for VA compensation benefits, a private medical opinion was associated with the claims file in November 2014. Dr. C.L. opined that the appellant's use of alcohol in service was not willful, but was an unintentional action in an attempt to self-medicate symptoms of PTSD related to the appellant's combat experiences. An April 2016 private psychological evaluation was associated with the claims file in March 2017. Based on interview with the appellant's therapist, L.Y., review of records, observation, clinical interview, and objective psychological testing, the private examiner diagnosed the appellant with PTSD and alcohol use disorder. The private examiner opined that the appellant would have met the criteria for PTSD following a sexual assault that the appellant claimed was committed during his confinement in service (from September 23, 1997 through October 6, 1997). See DD Form 214. In an addendum medical opinion, the private examiner opined that the appellant's misconduct leading to his discharge under other than honorable conditions was not willful. The private examiner opined that the appellant was attempting to "self-medicate the stress and trauma that comes with being in the Marines by using alcohol frequently." The private examiner opined that the appellant had not been allowed to drink in the community he grew up in, and that he did not have a desire to drink even when given the opportunity. The private examiner reported that it appeared the appellant's drinking became problematic upon entering service. In July 2017, a VA medical opinion was requested as to whether, at the time of the offenses leading to the appellant's discharge under other than honorable conditions, the appellant exhibited, due to disease: (i) a more or less prolonged deviation from his normal method of behavior; (ii) interfered with the peace of society; or (iii) had so departed 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. See 38 C.F.R. § 3.354(a). In an August 2017 VA medical opinion, the examiner reported that it was not possible to determine "insanity" as described in the July 2017 request. The examiner reported that it was advisable to have a full forensic interview along with a battery of psychological testing that can be done by a mental health professional who has the specialized training to answer the requested opinion with as much certainty as possible. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one). To the extent the examiner reported it was not possible to determine insanity, the Board notes that the determination of whether insanity existed at the relevant time (i.e., at the time of the offenses) is a factual question to be resolved by the factfinder based on consideration of the circumstances of the particular case. See Beck v. West, 13 Vet. App. 535 (2000); see also VAOPGCPREC 20-97. Thus, it is the Board's duty as a factfinder to determine whether insanity existed at the time of the offenses leading to the discharge. However, in order to constitute insanity for the purposes of 38 C.F.R. § 3.354(a), the claimant's behavior must be "due to disease." See Zang v. Brown, 8 Vet. App. 246, 253 (1995); see also Gardner v. Shinseki, 22 Vet. App. 415, 419 (competent medical evidence is required to establish a diagnosis). Initially, with respect to the assertion that the appellant's alcoholism was so severe at the time of the offenses in service as to meet the definition of insanity under 38 C.F.R. § 3.354(a), VA's Office of General Counsel has specifically held that conduct which is generally attributable to a substance-abuse disorder (to include failure to fulfill work, school, or home obligations, including repeated absences or poor performance, or legal problems such as arrests for substance-related disorderly conduct) does not exemplify the gross nature of conduct that is generally considered to fall within the scope of the term "insanity." See VAOPGCPREC 20-97. Additionally, with respect to the assertion that the appellant was suffering from debilitating alcoholism at the time of his offenses resulting in his discharge under other than honorable conditions, VA regulations state that the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. 38 C.F.R. § 3.301(c)(2); see also Allen v. Principi, 237 F.3d 1368, 1377-1378 (Fed. Cir. 2001) (distinguishing a primary alcohol abuse disability, where alcohol is consumed willfully and could be considered willful misconduct, from an alcohol abuse disability arising as a direct result of a psychiatric condition, which is not considered voluntary or "willful"). Here, service treatment records document a diagnosis of alcohol dependence concurrent with the appellant's offenses leading to his discharge under other than honorable conditions. Service treatment records are otherwise silent for symptoms or diagnosis of any other psychiatric condition in service. However, the private medical opinions of record appear to attribute the appellant's use of alcohol in service to PTSD, and/or the stress and trauma that comes with being in the Marines (after it was noted that the appellant's first alcohol related incident was just a few months into service, and well before the appellant's reported stressors or traumatic events). See addendum to the April 2015 private psychological evaluation. The private medical opinions do not appear to consider or discuss the fact that service records document that the appellant required a waiver prior to entering active service due to legal problems related to alcohol use. See 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 with sound reasoning for the conclusion). In addition, the incomplete factual assumptions based on omissions of significant facts renders the opinions of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Insofar as the appellant has argued that his alcohol abuse disability arose as a direct result of a psychiatric condition in service (thereby suggesting that the alcohol-related offenses leading to his discharge should not be considered willful misconduct, and/or that the appellant was "insane" at the time of the offenses leading to his discharge), the Board finds that remand is necessary for additional development. In light of the appellant's assertions, and the current evidence of record and VA's duty to assist, the Board finds remand is necessary for additional development. See Gardner, 22 Vet. App. at 421 (The duty to assist applies to all claimants, regardless of whether they have established veteran status). The matters are REMANDED for the following action: 1. Obtain a medical opinion from a psychologist or psychiatrist as to whether the appellant had a mental disorder at the time of the offenses that resulted in his discharge under other than honorable conditions. If the psychologist or psychiatrist determines that an opinion cannot be provided without an examination, the appellant should be scheduled for an examination. Following a review of the claims file (and if necessary, a VA examination), to include the decision herein, the psychologist or psychologist should respond to the following: (a.) Opine as to whether the appellant's behavior at the time of the offenses leading to his discharge was due to disease, and identify the appropriate diagnosis or diagnoses. In offering an opinion, the psychologist or psychiatrist should consider and discuss the assertion that the appellant's in-service alcohol use disorder, diagnosed as alcohol dependence, arose as a direct result of a psychiatric condition in service. (b.) The psychologist or psychiatrist should opine as to whether, at the time of the appellant's offenses in service, the appellant exhibited: (1) due to disease, a more or less prolonged deviation from his normal method of behavior; (2) due to disease, interfered with the peace of society; or (3) due to disease, so departed from accepted community standards as to lack the adaptability to make further adjustment to the social customs of the community in which he was residing. A complete medical rationale for all opinions expressed must be provided. If an opinion cannot be rendered without resorting to mere speculation as to whether the appellant's behavior at the time of the offenses leading to his discharge was due to disease, the psychologist or psychiatrist must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the psychologist or psychiatrist (i.e., additional facts are required, or the psychologist or psychiatrist does not have the needed knowledge or training). 2. Readjudicate the appeal. If the benefit sought remains denied, issue the appellant and his attorney a supplemental statement of the case and inform the appellant of his appeal options. G. A. WASIK 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.