Citation Nr: 21074322 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-40 086 DATE: December 14, 2021 ORDER The character of the Appellant's discharge from service is not a bar to the award of Department of Veterans Affairs (VA) benefits; to this extent the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for a bilateral leg condition is remanded. FINDING OF FACT The Appellant was not discharged because of one of the offenses, as specified in VA regulations, that is considered to have been issued under dishonorable conditions. CONCLUSION OF LAW The criteria for status as a veteran and basic entitlement to VA compensation benefits have been met. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.1, 3.12, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty in the United States Army from October 2009 to March 2012. A Board hearing was held before the undersigned Veterans Law Judge in July 2019, and a transcript of the hearing is of record. In October 2019, the Board remanded the current issue on appeal for additional development. The Board finds the agency of original jurisdiction (AOJ) has substantially complied with the October 2019 remand directives, and the evidence of record is sufficient to proceed with a decision. For the reasons discussed further below, the Board finds the Appellant's discharge under other than honorable conditions no longer constitutes a bar to the award of VA compensation benefits. The character of the Appellant's discharge from service is not a bar to the award of VA compensation benefits. A claimant must first establish "veteran" status in order to qualify for VA compensation benefits. A veteran is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Thus, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). The AOJ determined that the Appellant's service is dishonorable for the purposes of entitlement to VA compensation benefits. See June 2014 VA administrative decision. The AOJ found that the Appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct, constituting a bar to the receipt of 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. Turning to the particular facts in this case, the Appellant entered active duty service in October 2009. Service records are silent for any disciplinary actions for the first approximately two years of service. The Appellant reported that he completed basic training and graduated in the top of his class for Advanced Individual Training (AIT) despite injuring his shoulder during AIT. See July 2019 Board hearing transcript; see also service treatment records (documenting a right shoulder injury during AIT and extensive treatment, to include a December 2010 arthroscopic surgery for posterior and anterior labral insufficiency with chondral injury). As early as March 2011, the Appellant was referred for treatment related to anger and sleeping issues. See March 2011 Emergency Nursing Record. In April 2011, a service treatment provider diagnosed the Appellant with atypical parasomnia. An August 2011 service treatment record, notes that the Appellant received inpatient treatment for alcohol abuse from June through July 2011, and inpatient treatment from July through August 2011 for psychiatric symptoms. In September 2011, the Appellant was diagnosed with bipolar disorder. The service treatment provider reported the Appellant was experiencing depression, insomnia, mood swings, temper outbursts, racing thoughts, homicidal impulses, and emotional detachment. The service treatment provider reported the Appellant's treatment consisted of Prozac for depression, lithium for mood swings, Abilify for temper outbursts, and Ambien for sleep. In a September 1, 2011 letter, the service treatment provider recommended that the Appellant be transferred to the Warrior Transition Battalion and referred to a Medical Evaluation Board. The service treatment provider reported the Appellant no longer met service retention standards due to the nature of his bipolar disorder and his prescribed antipsychotic and mood stabilizing medications. See also February 2012 service treatment record (noting an appointment for a Medical Evaluation Board had not been completed). Service records indicate that the Appellant failed to go at the time prescribed to his appointed place of duty on the morning of September 8, 2011, September 21, 2011, December 28, 2011, December 29, 2011, January 3, 2012, January 4, 2012, and January 17, 2012. See February 2012 Charge Sheet. Additionally, the Appellant was charged with the offense of disrespect towards a superior commissioned officer on or about January 9, 2012, and disrespect towards a noncommissioned officer on or about January 26, 2012. Id. The Appellant was charged with disobeying lawful orders and/or regulations on January 5, 2012, January 26, 2012, and February 19, 2012. Id. Finally, the Appellant was charged with damaging military property in the sum of less than $500.00 for punching a barracks wall with his fist. Id. In February 2012, the above charges were preferred against the Appellant, and received by the summary court martial convening authority. It appears that prior to referral of the charges to court martial, the Appellant submitted a voluntary request for discharge in lieu of trial by court martial. See February 2012 Request for Discharge in Lieu of Court Martial. In March 2012, the Appellant's request for discharge in lieu of court martial was approved, and he was separated with a characterization of service under other than honorable conditions. In connection with the Appellant's claim for VA disability compensation benefits, he indicated that the misconduct resulting in his discharge under other than honorable conditions was related to mental health issues in service. See VA Form 21-4138 received by VA in February 2013. In a medical opinion associated with the claims file in April 2015, registered nurse R.L. stated that the Appellant's misconduct involving failing to go at the time prescribed to his appointed place of duty in the morning was due to his sleep problems, as well as side effects of medications he was prescribed that included sleepiness. Additionally, R.L. stated that the Appellant's misconduct involving disrespect, disobedience, and angry/violent outbursts was due to his bipolar disorder. During the July 2019 Board hearing, the Appellant testified that he was prescribed several medications in service, including lithium and Prozac, which made it very difficult for him to wake after falling asleep. The Appellant explained that his failure to go at the time prescribed to his appointed place of duty was a result of oversleeping due to his medications, and that the related misconduct was not intentional. The Appellant's witness at the hearing indicated that because of his bipolar disorder, the Appellant did not have an awareness of his actions related to the other instances of misconduct involving disrespect, disobedience, and angry/violent outbursts. The Appellant was afforded a VA mental disorders examination in July 2021. The examiner noted that service treatment records document that the Appellant was diagnosed in service with multiple conditions, to include bipolar disorder, intermittent explosive disorder, adjustment disorder, alcoholism, and borderline personality disorder. The examiner opined that the multiple diagnoses in service were at least as likely as not manifestations of the Appellant's bipolar disorder. The examiner reported the Appellant was described as presenting "manic" in service treatment records, which would likely contribute to impulsive behaviors and impaired judgment. Additionally, the examiner reported the Appellant was diagnosed with intermittent explosive disorder which, by definition, causes abnormal reactions to events/situations and involves aggression or destruction of property. The examiner noted that one of the offenses resulting in the Appellant's discharge under other than honorable conditions was the destruction of military property by punching a barracks wall. The examiner also noted the Appellant was prescribed medication with the potential for sedation (lithium and Abilify) for conditions that in themselves would be likely to impair the Appellant's sleep. The examiner reported that such factors can explain oversleeping and missing morning formations. The examiner opined that the Appellant's misconduct in service involved behavior that did not demonstrate willful acts. The examiner reported the Appellant's misconduct was more likely explained by the symptoms/effects of the multiple psychiatric conditions that were diagnosed and treated during military service, as well as the side effects of the treatments he was prescribed for those conditions. In considering the entire evidence of record, the Board resolves reasonable doubt in favor of the Appellant in finding that the particular facts of this case do not demonstrate that his discharge under other than honorable conditions was a result of willful and persistent misconduct. See Stringham v. Brown, 8 Vet. App. 445, 447 (1995) (The determination as to whether a discharge is based on willful and persistent misconduct is a matter of fact to be determined by the Board). 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 reaching the favorable decision herein, the Board assigns weight to the July 2021 VA examiner's opinion that the Appellant's misconduct in service involved behavior that did not demonstrate "willful" acts. The Appellant has reported that his behavior involving failing to go at the time prescribed to his appointed place of duty in the morning, disrespect, disobedience, and angry/violent outbursts was not intentional. Such is supported by the medical opinions of record, to specifically include the July 2021 VA medical opinion, which explicitly found that the Appellant's misconduct was not "willful." The Board finds that the July 2021 VA medical opinion is supported with a clinical rationale, and is supported by the other medical and lay evidence of record, as well as the particular facts of this case. In light of the above, the Board finds that the standard for willful misconduct, which requires intentional wrongdoing with knowledge of or wanton and reckless disregard for its probable consequences, is not shown. Therefore, the bar to VA compensation benefits under 38 C.F.R. § 3.12(d)(4) for a discharge based on willful and persistent misconduct is not applicable in this case. Additionally, the Board finds that no other bars to VA compensation benefits under 38 U.S.C. § 5303 or 38 C.F.R. § 3.12 are applicable in this case. Accordingly, the criteria for status as a veteran and basic entitlement to VA benefits have been met. To this extent, the Appellant's appeal is granted. REASONS FOR REMAND The current appeal stems from the Veteran's February 2013 application for disability compensation benefits for: (1) a right shoulder condition; (2) a brain cyst; (3) a mental health condition; (4) a sleep disorder; (5) a headache disorder; and (6) a bilateral leg disability. See February 2013 VA Form 21-526EZ. In a June 2014 VA notification letter, the Veteran's service connection claims, for disability compensation purposes, were denied on the grounds that the character of his discharge is a bar to the award of VA compensation benefits. The Veteran filed a notice of disagreement as to the issue of service connection for (1) a right shoulder condition; (2) a brain cyst; (3) a mental health condition; (4) a sleep disorder; (5) a headache disorder; and (6) a bilateral leg disability. See April 2015 notice of disagreement. In a June 2016 statement of the case, the AOJ addressed only the "veteran status" element of the Veteran's appeal. See D'Amico v. West, 209 F.3d 1322, 1326 (2000) ("[a] claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability"). The AOJ subsequently granted service connection (for treatment purposes only under 38 U.S.C. Chapter 17) for a pineal cyst and a right shoulder disability. See September 2016 rating decision. Thus, with respect to the Veteran's April 2015 notice of disagreement, the element of service connection for a pineal cyst and a right shoulder disability are no longer on appeal. In the same rating decision, the AOJ denied service connection (for treatment purposes only under 38 U.S.C. Chapter 17) for a mental health condition, a sleep disorder, a headache disorder, and a bilateral leg disability. Insofar as the Veteran's April 2015 notice of disagreement includes the element of service connection for a mental health condition, a sleep disorder, a headache disorder, and a bilateral leg disability, the Board assumes jurisdiction over these issues for the purpose of remanding them for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); D'Amico, 209 F.3d at 1326. The matter is REMANDED for the following action: 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 issues of entitlement to service connection for: (1) an acquired psychiatric disorder; (2) a sleep disorder; (3) a headache disorder; and (4) a bilateral leg disability. MICHAEL A. HERMAN 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.