Citation Nr: 21069917 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-08 189 DATE: November 22, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as anxiety, depression, and paranoia) is remanded. The issue of whether the character of Veteran's discharge for the period of service from June 30, 1977 to December 9, 1982 is a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Marine Corps from August 20, 1973 to December 23, 1976. The Veteran had additional active service in the United States Navy from June 30, 1977 to December 9, 1982, which was terminated by a bad conduct discharge. Entitlement to service connection for an acquired psychiatric disorder (claimed as anxiety, depression, and paranoia) is remanded. The issues currently on appeal stem from a June 2016 service connection claim for entitlement to service connection for an acquired psychiatric disorder (claimed as anxiety, depression, and paranoia). See June 2016 VA Form 21-526EZ. In an October 2016 VA notification letter, the Veteran's service connection claim for an acquired psychiatric disorder was denied on the grounds that the character of his discharge for the period of service from June 30, 1977 to December 9, 1982 is a bar to the receipt of VA benefits. See October 2016 VA notification letter. However, the agency of original jurisdiction (AOJ) did not address the Veteran's notice of disagreement that his service connection claim for an acquired psychiatric disorder was based on his honorable period of service from August 20, 1973 to December 23, 1976. See September and October 2017 notice of disagreement. Accordingly, the Board assumes jurisdiction over the issue of entitlement to service connection for an acquired psychiatric disorder (based on the Veteran's honorable period of service from August 20, 1973 to December 23, 1976) for the purpose of remanding it for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issue of whether the character of Veteran's discharge for the period of service from June 30, 1977 to December 9, 1982 is a bar to the receipt of VA benefits is remanded. As noted above, the issues currently on appeal stem from a June 2016 service connection claim for entitlement to service connection for an acquired psychiatric disorder (claimed as anxiety, depression, and paranoia). While the Veteran's claim was denied on the grounds that the character of his discharge for the period of service from June 30, 1977 to December 9, 1982 is a bar to the receipt of VA benefits, it appears the Veteran asserts that this period of service terminated by a bad conduct discharge was a result of mental health problems that had onset during his prior honorable period of service. See September and October 2017 notice of disagreement; see also February 2019 VA Form 9. As such, the Board finds the issue of whether the character of the Veteran's discharge for the period of service from June 30, 1977 to December 9, 1982 is a bar to the receipt of VA benefits is inextricably intertwined with the remanded issue of entitlement to service connection for an acquired psychiatric disorder (based on the Veteran's honorable period of service from August 20, 1973 to December 23, 1976). Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Additionally, based on the Veteran's assertions and the current evidence of record, the Board finds the issue of insanity has been raised by the record. Under 38 U.S.C. § 5303(b) and 38 C.F.R. § 3.12(b), the bar to payment of VA benefits based on a discharge issued under dishonorable conditions is lifted if it is found that the person was insane at the time of committing the offense(s) causing such discharge or release. Pursuant to 38 C.F.R. § 3.354(a), insanity 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, 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." Here, service treatment records are silent for symptoms or a diagnosis of a mental disease concurrent with the Veteran's extended periods of unauthorized absence, which resulted in his period of service from June 30, 1977 to December 9, 1982 being terminated by a bad conduct discharge. 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). In a November 2018 medical opinion from the Veteran's VA psychologist, Dr. E.R. reported that psychological testing, chart review, and clinical observations over time lend evidence to the Veteran having a long-standing difficulty with paranoid thought processes that at times can be held to delusional intensity, chronic depression, and periods of intensified depressive episodes involving auditory hallucinations. Dr. E.R. indicated it would not be unreasonable to assume that significant and persistent mental health difficulties were present during the Veteran's years in the Navy (from June 30, 1977 to December 9, 1982); and if so, very likely would have contributed to the behavior that led to the Veteran's bad conduct discharge. However, VA treatment records associated with the claims file indicate that the Veteran's mental health symptoms have "always occurred in the context of chronic substance abuse." See March 2002 VA psychology intake examination; see also VAOPGCPREC 20-97 (holding 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."). In light of the above, the Board finds remand of the issue of whether the character of the Veteran's discharge for the period of service from June 30, 1977 to December 9, 1982 is a bar to the receipt of VA benefits is necessary for additional development before an informed decision can be made. The matters are REMANDED for the following action: 1. Following any development deemed necessary, to specifically include obtaining a VA examination or medical opinion, provide the Veteran and his representative with a statement of the case regarding the issue of entitlement to service connection for an acquired psychiatric disorder based on the Veteran's honorable period of service from August 20, 1973 to December 23, 1976. 2. Following any development deemed necessary above, a medical opinion should be obtained from a psychologist or psychiatrist as to whether the Veteran had a mental disorder at the time of the offenses (i.e., the Veteran's extended periods of unauthorized absence from September 16, 1977 to January 15, 1979, and from March 17, 1979 to June 8, 1981) that resulted in the Veteran's bad conduct discharge for the period of service from June 30, 1977 to December 9, 1982. The psychologist or psychiatrist is asked to respond to the following: (a.) Did the Veteran, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior? (b.) Did the Veteran, due to disease, interfere with the peace of society? (c.) Did the Veteran, due to disease, depart (become antisocial) from the accepted standards of the community to which by birth an education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided? In offering the above opinions, the psychologist or psychiatrist should consider Dr. E.R.'s November 2018 medical opinion. A complete medical rationale for all opinions expressed must be provided. 3. Readjudicate the appeal. V. Chiappetta 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.