Citation Nr: 21077221 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-13 694 DATE: December 29, 2021 ORDER The Appellant was insane, as defined by VA regulations, at the time of the commission of the offenses underlying his other than honorable discharge; thus, the regulatory bar to VA compensation benefits has been lifted and the claim is granted. FINDINGS OF FACT 1. The Appellant entered active duty in October 1988 and was discharged in December 1990 under other than honorable conditions due to misconduct due to the commission of a serious offense. 2. A May 2014 administrative decision determined that the Appellant's discharge was dishonorable for VA purposes due to his willful and persistent misconduct. 3. Resolving reasonable doubt in favor of the Appellant, he was insane, per VA regulations, at the time of the commission of the acts underlying his discharge. CONCLUSION OF LAW The Appellant was insane at the time of the commission of the offenses underlying his December 1990 other than honorable discharge; therefore, the criteria for lifting the regulatory bar to the payment of VA benefits have been met. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty with the United States Navy from October 1988 to December 1990, 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 2014 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 Veterans Law Judge (VLJ) at a hearing in December 2018. In May 2019, the Board remanded the issue of whether the character of the Appellant's discharge is a bar to VA benefits. The remand directives included obtaining private and VA treatment records, and all evidence relevant to the Appellant's July 2014 DD forms 149 and 293 not currently of record, as well as obtaining a medical opinion regarding whether the Appellant was insane for VA purposes at the time of the conduct that led to his discharge. A letter was subsequently sent to the Appellant requesting authorization to obtain private treatment records, and outstanding VA treatment records, service personnel records, and records pertaining to the July 2014 application forms were associated with the claims file. VA also obtained an adequate medical opinion discussing the Appellant's conduct during service and responding to the questions specified by the Board. The Board therefore finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Whether the character of the Appellant's discharge from service for the period from October 1988 to December 1990 constitutes a bar to payment of VA benefits 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). The provisions of 38 C.F.R. § 3.12(b) set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits where the discharge is under conditions other than honorable. There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c), and regulatory bars listed in 38 C.F.R. § 3.12(d). A discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d). There exists an exception to the bars to benefits where the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided in 38 U.S.C. § 5303(b). Under VA regulations, an insane person is 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); see Zang v. Brown, 8 Vet. App. 246, 253 (1995); see also VAOGCPREC 20-97 (May 22, 1997) (clarifying VA's definition of insanity). 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. See Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55. Importantly, mental illness is not identical to "insanity." Beck, 13 Vet. App. at 539. The Appellant entered active duty in October 1988, and was discharged in December 1990 under other than honorable conditions due to misconduct, for commission of a serious offense. In May 2014, VA issued an administrative decision finding that the character of the Appellant's discharge was a bar to payment of VA benefits. The decision noted violations of the Uniformed Code of Military Justice beginning in June 1989. The offenses included breach of peace on June 13, 1989; unauthorized absence on July 20, 1989; unlawful carrying of a concealed weapon on April 3, 1990; drunk and disorderly conduct, assault on another servicemember, willful destruction of military property, and unauthorized absence on May 19, 1990; drunk and disorderly conduct, assault, failure to obey a lawful order, and use of disrespectful language on June 10, 1990; and unauthorized absence on June 25, 1990. On July 2, 1990, the Appellant was notified of recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, and was discharged on December 27, 1990. The administrative decision noted that sanity was not an issue, and concluded that the Appellant's actions in service demonstrate willful and persistent misconduct, which bar the payment of VA benefits. In his appeal of this administrative decision, the Appellant asserts that he received an other than honorable discharge because of a diminished mental state caused by a head trauma he sustained during service, when he was struck in the head with a pipe during an assault. He testified at the December 2018 Board hearing that he received five stitches on the right side of his head from this injury; this report is corroborated by the Appellant's service treatment records; which note a head injury resulting in four stitches in June 1989. He also testified that he currently receives psychiatric treatment for posttraumatic stress disorder (PTSD). The Board takes these statements as an assertion that the Appellant was insane as defined by VA regulations at the time of the commission of the acts underlying his other than honorable discharge. To address the Appellant's contentions, VA obtained four medical opinions regarding whether the Appellant was insane at the time of the conduct that led to his discharge. The first opinion, in September 2019, is inadequate, as the examiner based the negative responses solely on a lack of contemporaneous medical records diagnosing psychosis or other mental disorder. This basis for the negative opinion is inadequate because, as noted above, a finding of insanity for this purpose is not identical to a diagnosis of mental health disorder. See Beck, 13 Vet. App. at 539. Further, the examiner appears to disregard the Appellant's report, which is also noted in the separation examination, of a head injury in 1989 without providing any reasoning for why this report was not considered credible or relevant. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The second and third opinions, in August and September 2020, are also inadequate. The August 2020 examiner identified a diagnosis of schizoaffective disorder and noted that the head injury in service appears to have little contribution to the Appellant's current status. The August 2020 examiner opined that the Appellant had significant trauma prior to his service and exhibited behavioral problems and poor impulse control prior to his service. The September 2020 examiner identified a diagnosis of schizoaffective disorder with antisocial personality, and opined that schizoaffective disorder is often comorbid with depression and bipolar, and that, absent psychosis, the diagnosis of depression in the record and use of SSRI medication does not resolve the issue any more than antisocial complicating schizoaffective disorder. The examiner did not explain whether the referenced issue was the current psychiatric diagnosis or VA's question whether the Appellant had, due to disease, interfered with the peace of society. The September 2020 examiner further stated that antisocial personality with schizoaffective disorder accounts for a similar amount of variance as a diagnosis of depression, and that the presence of psychosis argues against a diagnosis of major depressive disorder. The examiner also opined that there was a lack of a credible diagnosis of posttraumatic stress disorder (PTSD) and that multiple breaches of the peace and assaults did not occur when the Appellant was psychotic, which suggested the predominance of an antisocial process. The examiner did not offer any further discussion of these conclusions. The August and September 2020 examiners did not respond to the questions posed by VA or otherwise discuss the Appellant's behavior at the time of the conduct that led to his discharge, making both of these opinions inadequate. The Board finds the last opinion, in July 2021, to be adequate. The examiner opined that the Appellant did exhibit a more or less prolonged deviation from his normal method of behavior. The examiner opined it is at least as likely as not that the Appellant's psychiatric condition in 1989 and 1990 interfered with the peace of society, reasoning that an assault resulting in needing medical attention like the one the Appellant reported in 1989 could reasonably produce symptoms of a psychiatric condition such as PTSD. The examiner opined that symptoms of PTSD would not necessarily render someone so departed from the accepted standards of the community as to lack the adaptability to make adjustments to the social customs of that community, and that it was more likely the excessive drinking of alcohol that contributed to the Appellant's inability to respond and react in a socially acceptable manner. The examiner did not offer any opinion regarding the relationship between the Appellant's report of PTSD symptoms in 1989 and 1990 and his use of alcohol. Lastly, the examiner opined that the evidence does not suggest the Appellant was unable to discern right from wrong in 1989 and 1990, except when under the influence of alcohol. The July 2021 VA medical opinion regarding sanity substantially addresses the questions posed by the Board. It is adequate because the examiner thoroughly explained the reasoning behind the conclusion and considered the Appellant's particular circumstances, including his lay statements. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). After careful review of the evidence of record, the Board finds the Appellant was insane for the purposes of VA regulations at the time of the misconduct that led to his discharge. The only adequate medical opinion in the record is the July 2021 VA medical opinion. First, the Board notes the July 2021 examiner did not opine that the Appellant was, due to disease, so departed from the accepted standards of the community as to lack adaptability to make further adjustment to the social customs of that community. See Zang, 8 Vet. App. at 253-54 (three distinct definitions of insanity provided in section 3.354(a) are all read to require misconduct be "due to disease"). Although the examiner raised the possibility that the Appellant's use of alcohol could have caused him to be so departed from the accepted community standards, the examiner did not discuss whether the use of alcohol was associated with the psychiatric condition noted elsewhere in the opinion. The examiner gave favorable opinions that the Appellant did exhibit a more or less prolonged deviation from his normal method of behavior, and that it is at least as likely as not that the psychiatric condition at the time of the misconduct interfered with the peace of society. The Board notes that the examiner did not discuss whether the more or less prolonged deviation from the Appellant's normal method of behavior was due to disease. See Zang, 8 Vet. App. at 253-54. However, the examiner did provide an adequate discussion in support of the conclusion that the psychiatric condition caused the Appellant to interfere with the peace of society. The examiner discussed the lay reports of a head injury and corroborating contemporary medical evidence, noting that such an injury sustained from an assault could produce symptoms of a psychiatric condition such as PTSD. The examiner opined that such symptoms at least as likely as not were a psychiatric condition present at the time of the misconduct, resulting in interference with the peace of society. (Continued on the next page) Based on this competent and persuasive medical opinion, the Board finds the Appellant meets one of the three circumstances provided in the definition of insanity in VA regulations. See 38 C.F.R. § 3.354(a); See Zang, 8 Vet. App. at 253 (section 3.354 provides for "three independent instances of insanity"). Therefore, resolving reasonable doubt in favor of the claimant, the Board finds the Appellant was insane at the time of the commission of the offenses that led to his other than honorable discharge, and the regulatory bar to the payment of VA benefits is lifted. H. SEESEL 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.