Citation Nr: 21076838 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-05 371 DATE: December 28, 2021 REMANDED Whether the character of the Appellant's discharge constitutes a bar to the payment of VA benefits is remanded. REASONS FOR REMAND The Appellant served on active duty with the United States Army from March 1970 to October 1971, and the service was characterized as under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits. The Veteran testified before the undersigned at a hearing in August 2021. Whether the character of the Appellant'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 Appellant's discharge under other than honorable conditions was based upon an absence without official leave (AWOL) for a continuous period of more than 180 days, meaning that benefits are not payable based on this period of service. See 38 C.F.R. § 3.12(c)(6). However, the bar to payment of VA benefits is lifted with a finding that the servicemember was 'insane' under VA's definition at the time of committing the offense(s) causing the discharge or release. 38 C.F.R. § 3.12(b). In this case, the Board finds the issue of insanity has been raised by the record. The Appellant was diagnosed with posttraumatic stress disorder (PTSD) stemming from his combat experiences in the Republic of Vietnam. The Appellant's representative argued that the PTSD symptoms impaired the Appellant's decision-making abilities at the time he went AWOL for 183 days. The Appellant's sister testified at the August 2021 Board hearing that the Appellant's PTSD symptoms were worst when he returned home from Vietnam and the few years following that time. Under VA regulations, 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." 38 C.F.R. § 3.354(a). Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis. Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009). Given VA's duty to assist, the lay evidence indicating the misconduct resulting in the Veteran's discharge under other than honorable conditions involved uncharacteristic behavior, and post-service treatment records suggesting the Veteran had a psychological disorder concurrent with his misconduct in service, the Board finds a remand is necessary to obtain a medical opinion as to whether the Veteran was "insane" (as defined by VA regulations) at the time of the misconduct that led to his discharge. The matter is REMANDED for the following action: Obtain a medical opinion from a psychologist or psychiatrist as to whether the Appellant 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 Appellant if deemed necessary, the psychologist or psychiatrist should offer an opinion as to whether the Appellant 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). The examiner is also advised that the Appellant's misconduct consists of two periods of AWOL; one period of 20 days prior to deployment to Vietnam, and one period of 183 days after the Appellant's R&R visit to the United States during his deployment to Vietnam. After review of the definition of "insanity," the examiner should respond to the following: 1) Did the Appellant, 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 Appellant, due to disease, interfere with the peace of society concurrent with his misconduct in service? 3) Did the Appellant, 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? In providing the requested opinions, the examiner should address all pertinent lay and medical evidence of record, including the testimony from the August 2021 Board hearing by the Appellant and the Appellant's sister. A complete medical rationale for all opinions expressed must be provided. Thomas H. O'Shay 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.