Citation Nr: 21075415 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-39 028 DATE: December 20, 2021 ORDER New and material evidence having been presented, the issue of whether the character of the Servicemember's discharge constitutes a bar to the payment of Department of Veterans Affairs (VA) benefits is reopened. The appeal as to that specific issue is granted. REMANDED Whether the character of the Servicemember's discharge constitutes a bar to the payment of VA benefits is remanded. FINDINGS OF FACT 1. The Servicemember's claim for VA benefits was denied in a July 1991 administrative decision that was not appealed; no further evidence relevant to the Veteran's service connection claims or character of discharge was submitted for a period of one year following the July 1991 administrative decision. 2. Evidence relevant to the character of the Servicemember's discharge was submitted since the July 1991 administrative decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Appellant's claim for VA benefits. CONCLUSION OF LAW New and material evidence has been received since the July 1991 denial became final; the criteria for reopening the previously denied claim for VA benefits have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.203, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Servicemember served on active duty with the United States Army from January 1967 to February 1971; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Servicemember's military service does not entitle the Appellant to VA benefits. The Servicemember died in November 2005; the Appellant in this case is his surviving spouse. The appellant testified before the undersigned during an August 2021 hearing; a transcript of the hearing is of record. Whether new and material evidence has been received to reopen the issue of whether the character of the Servicemember's discharge constitutes a bar to the receipt of VA benefits A claim that has been finally adjudicated may only be reopened by submitting new and material evidence. 38 U.S.C. § 5108; see also D'Amico v. West, 209 F.3d 1322 (2000) (applying the new and material evidence standard to claims previously denied on the basis of veteran status and character of discharge). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). The Servicemember applied for hospital care at VA, but was informed in August 1979 that his discharge was considered dishonorable for the purposes of eligibility for VA benefits. The Servicemember initially filed a claim for disability benefits for a low back disability in June 1987. This claim was denied based on a finding that the Servicemember's discharge from service did not qualify him for benefits. The Servicemember received notice of this decision in December 1987, and did not submit any new or material evidence or a notice of disagreement in the year following the notification. The Servicemember filed another claim for disability benefits for a low back disability and for posttraumatic stress disorder (PTSD) in June 1991. This claim was again denied based on the status of the Servicemember's discharge from service. The Servicemember received notice of this decision in July 1991, and did not submit any new or material evidence or a notice of disagreement in the year following the notification. The Appellant filed the current claim for VA benefits in March 2012. In August 2021, the Appellant testified during a Board hearing about the effect of the Servicemember's Vietnam service on his mental state upon return, and additional service personnel records relating to the Servicemember's separation from service were added to the record in March 2016. The Board finds the new evidence to be material, as it goes directly to the element of status as a veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a veteran is one of five elements of a claim for service connection benefits). Therefore, the issue of whether the Veteran had service qualifying him for the receipt of VA benefits is reopened. REASONS FOR REMAND Whether the character of the Servicemember's discharge constitutes a bar to the payment of VA benefits is remanded. VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303; 38 C.F.R. § 3.12(a). Here, the Servicemember's discharge was upgraded from under other than honorable conditions (OTH) to a general, under honorable conditions, discharge as part of the Department of Defense's 1977 Special Discharge Review program. However, the Army Discharge Review Board did not affirm this decision upon review of the Servicemember's case on an individual basis, meaning that the upgraded discharge does not remove any bar to benefits imposed by VA law and regulations. See 38 C.F.R. § 3.12(h). Therefore, as the OTH discharge was issued as a result of an AWOL for a continuous period of more than 180 days, the Appellant must either: (1) show that there were compelling circumstances to warrant the prolonged unauthorized absence; (2) show that the Servicemember was 'insane' for the purposes of VA regulations at the time of the misconduct leading to discharge; or (3) obtain a decision from a board of correction of records established under 30 U.S.C. § 1552 upgrading his discharge. See 38 C.F.R. § 3.12(c)(6). During the August 2021 Board hearing, the Appellant's representative raised the issue of whether the Servicemember was insane at the time of the misconduct that led to his discharge. However, there is no medical opinion in the record discussing whether the Servicemember met VA's definition of insanity at the time he went AWOL after his service in Vietnam. Therefore, a remand is necessary to obtain such an opinion. The Board also notes that, in September 1993, the Servicemember again applied to the Department of the Army to have his discharge upgraded. The results of this request are not in the record; on remand, efforts should be made to ensure the Servicemember's full personnel file is associated with the record. The matter is REMANDED for the following action: 1. Ensure all service personnel records related to the Servicemember's discharge are associated with the claims file, including, but not limited to, any application to the Army Board for Correction of Military Records. 2. Obtain a medical opinion from a psychologist or psychiatrist as to whether the Servicemember had a mental disorder at the time of the misconduct that resulted in his discharge. 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 Servicemember if deemed necessary, the psychologist or psychiatrist should offer an opinion as to whether the Servicemember 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: 1) Did the Servicemember, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his misconduct in service? 2) Did the Servicemember, due to disease, interfere with the peace of society concurrent with his misconduct in service? 3) Did the Servicemember, 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. Jonathan Hager 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.