Citation Nr: 21072553 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-20 253 DATE: December 3, 2021 REMANDED Whether the character of the appellant's discharge is a bar to entitlement to Department of Veterans Affairs (VA) benefits, other than health care and related benefits authorized by chapter 17 of title 38 United States Code, is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Marine Corps from October 2007 to July 2011, including combat duty in Afghanistan and Iraq. He received a discharge under conditions other than honorable, noted to result from a pattern of misconduct due to 2 non-judicial punishments and 2 convictions by summary courts-martial. See Notification of Separation Proceedings, April 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 administrative decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. In June 2019, the Board remanded the appeal for issuance of a Supplemental Statement of the Case (SSOC). 1. Whether the character of the appellant's discharge is a bar to entitlement to VA benefits is remanded. The appellant asserts that he was insane at the time of the offenses that led to his discharge due to posttraumatic stress disorder (PTSD) and residuals of traumatic brain injury (TBI). Statement in support of claim, June 2017. In support of his claim, the appellant's representative submitted a July 2017 Independent Medical Evaluation regarding the appellant's mental state at the time of his misconduct. The evaluator, Dr. P.L.L., a psychiatrist and neurosurgeon, opined that It is as likely as not that (the appellant's) current psychiatric disorders are the result of his military service, including the residual effects of TBI with personality change, major depression diagnosed and partially treated while on active duty, and PTSD. It is much more likely than not the combination of depression, TBI and PTSD resulted in his neurobehavioral impairments and subsequent misconduct. Regarding the appellant's claimed PTSD, the evaluator stated that In regard to a diagnosis of PTSD, related to either one or both combat deployments, there has never been an adequate evaluation. There is no question (the appellant) meets the first criteria of "exposure to actual or threatened death, serious or serious injury." However, there is no information in his medical record indicating he was ever competently evaluated for the detailed criteria of PTSD in DSM-IV or V. It is a well-established fact Depression is commonly co-morbid with PTSD and (the appellant) did have multiple references to his depression in the available records. In addition, in January 2011, (the appellant) had the diagnosis of Combat/Operational Stress Disorder, or per DSM nomenclature Acute Stress Disorder, a known precursor of PTSD. Clearly, the psychiatry evaluation of 18 January 2011 in Afghanistan was not adequate to eliminate the diagnosis of PTSD. Therefore, without further information, I must say that it is at least as likely as not that (the appellant) has PTSD. He should have, at least, a complete evaluation in this regard. Regarding the appellant's possible TBI, the evaluator opined that It is important to note (the appellant) has still not had, an adequate evaluation. I did not see anywhere in the records provided that he ever had plain x-rays of his skull or facial bones. Despite the trauma he experienced, no one has investigated to find out if he sustained a skull fracture. He has never had a CT and/or MRI scan of his head and brain. An EEG has never been ordered. There is no record of neuropsychological testing. In the absence of a detailed evaluation, it is at least as likely as not (the appellant) experienced a service connected TBI which contributed to his ongoing depression and exacerbated his neurobehavioral impairments that may well have been manifest in his conduct while on active duty. The Board finds that this evaluation is inadequate to adjudicate the appellant's claims. First, the private examiner based his opinion solely on a review of the appellant's claims file and associated documents and did not include a clinical examination or testing of the appellant. Second, the evaluator opined that PTSD, TBI and depression, in combination, contributed to the appellant's misconduct, while not specifically diagnosing any mental health conditions. Third, the evaluator offered his opinions "in the absence of a detailed evaluation," indicating that his opinion, and supporting rationale, was limited and required further evaluation. Finally, the evaluator did not provide a sufficient rationale related to the issue of insanity, under 38 C.F.R. § 3.354(a). The Board also finds that, despite indications that the appellant suffers from head-related symptoms and his reported history of mild concussion, it is unclear whether the appellant has a current diagnosis of TBI. In a May 2017 VA examination, the examining psychologist diagnosed the appellant with PTSD and bipolar disorder but did not diagnose the appellant with TBI. Additionally, Dr. P.L.L. stated that the evidence indicates that it is more likely than not that the appellant has a TBI, but did not diagnose the condition, but suggested that the appellant be given a thorough evaluation. As there is an indication that the appellant may have a TBI that, if diagnosed, would likely be related to his military service, and possibly to his discharge from service, the appellant should be afforded a VA examination to determine whether the appellant has a TBI diagnosis and the nature and etiology of such a diagnosis. Character of Discharge After the development directed above and before determining whether the character of the appellant's discharge is a bar to VA compensation benefits, a VA opinion is warranted to evaluate whether the appellant was insane, as defined under VA law, at the time he committed the offense leading up to his other than honorable discharge. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12 (b); see also Zang v. Brown, 8 Vet. App. 246 (1995). If so, then a finding that the appellant's service was dishonorable will not be bar to VA benefits. 38 C.F.R. § 3.12(b). For VA purposes, an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, (1) exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) 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. See 38 C.F.R. § 3.354(a). The evidence raises the issue of whether the appellant was insane when he committed the acts leading to his other than honorable discharge. Specifically, the appellant submitted a July 2017 evaluation from P.L.L., MD, that opined that the appellant "more likely than not" suffered from posttraumatic stress disorder (PTSD), depression (as a precursor to PTSD), and TBI related to the appellant's report of traumatic events during his period of active duty. However, as discussed above, Dr. P.L.L. did not provide actual diagnoses of these conditions. The appellant's service treatment records also indicate that he was treated for mental health issues, to include depression, on active duty. Additionally, an April 2017 VA examination diagnosed the appellant with PTSD and bipolar depression with mixed features. The Board is cognizant that a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the Court has also held that the Board is required to obtain a medical opinion to determine whether a claimant's behavior during the offenses that led to his discharge was due to psychiatric disability and, if so, whether this constituted insanity under VA regulations. Gardner v. Shinseki, 22 Vet. App. 415 (2009). The Board finds that competent evidence raises the possibility that the appellant was insane, under 38 C.F.R. § 3.354(a), at the time of his misconduct. The Board also finds that there is insufficient medical evidence of record to determine whether the appellant was insane at the time his in-service offenses, and the Board is unable to independently make such a medical determination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Consequently, a medical opinion should be obtained upon remand. The matters are REMANDED for the following action: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who have provided psychiatric treatment. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The appellant and his representative must be notified of any inability to obtain the requested documents. 2. The AOJ should also secure any outstanding, relevant VA medical records. 3. Schedule the appellant for a VA TBI examination conducted by a health care provider who is qualified to diagnose TBI, and to determine the nature and etiology of any current residuals of head trauma. The claims file, including a copy of this remand, should be made available to the examiner. Any studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner is requested to review all pertinent records associated with the claims file, including the appellant's military personnel records, service treatment records, post-service medical records, and assertions. The TBI examiner should identify any current disability residual to head trauma. After a review of the record, the examiner should respond to each of the following: a. Does the appellant have a current diagnosis of TBI or head trauma? b. Are any current head trauma residuals related to the appellant's military service? In answering the above, the examiner is advised that the appellant is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. In providing any opinion, the examination should consider the appellant's private treatment records, VA treatment records, and service treatment records. Additionally, the examiner's opinion should reflect consideration of the appellant's lay statements regarding in-service incurrence and continuity of symptomatology as well as the July 2017 Independent Medical Evaluation by Dr. P.L.L. A detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After completing the preceding development in the above paragraphs, obtain a VA medical opinion from a qualified examiner to determine whether the appellant was insane at the time he committed the offenses leading up to his other than honorable discharge. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the appellant's military personnel records, service treatment records, post-service medical records, and assertions. If an examination is deemed necessary, one must be provided. The appellant is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the appellant was insane at the time he committed the offenses leading up to his other than honorable discharge. The examiner is also advised that for VA purposes, an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, (1) exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) 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. Regardless of the conclusion reached, the examiner should address the following: (1) the appellant's contentions that his misconduct was as a result of symptoms of PTSD and/or TBI; (2) the appellant's service treatment records indicating treatment for a mild concussion and depression; and (3) the July 2017 Independent Medical Evaluation by Dr. P.L.L. A detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.