Citation Nr: A21019880 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 191209-48657 DATE: December 14, 2021 ORDER Readjudication is warranted as to the issue of whether the character of the appellant's discharge from service is a bar to the award of Department of Veterans Affairs (VA) compensation benefits; to this extent the appeal is granted. REMANDED The issue of whether the character of appellant's discharge from service is a bar to the award of VA compensation benefits is remanded. FINDING OF FACT New evidence was received after a final August 1975 VA decision that is relevant to the issue of whether the appellant's discharge under other than honorable conditions is a bar to the award of VA compensation benefits. CONCLUSION OF LAW The criteria for readjudicating the issue of whether the character of the appellant's discharge from service is a bar to the award of VA compensation benefits has been met. 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Marine Corps from March 1973 to June 1974. The VA decision on appeal was issued in November 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In a December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Direct Review docket was elected, limiting the Board's consideration to the evidence of record at the time of the November 2019 decision on appeal. See 38 C.F.R. § 20.301. New and Relevant Evidence In an August 1975 VA decision, under the Legacy appeal system, the agency of original jurisdiction (AOJ) determined that no change was warranted in a May 1975 administrative decision which found that the appellant's discharge under other than honorable conditions is a bar to the award of VA compensation benefits. See May 1975 VA administrative decision; see also May 1975 VA notification letter (advising the appellant of his procedural and appellate rights). The appellant did not appeal the August 1975 decision, nor was any new and material evidence received within one year, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. In September 2017, a new request was made for a determination as to whether the appellant's discharge under other than honorable conditions is a bar to the award of VA benefits. See September 2017 VA Form 10-7131. In order to reopen a finally adjudicated claim under the Legacy appeal system, the claimant must present new and material evidence. See 38 C.F.R. § 3.156(a). As noted above, the decision on appeal in this case was issued in November 2019. Therefore, the new and material evidence issue has been recharacterized to reflect the applicable evidentiary standard under the AMA. See 38 C.F.R. §§ 3.2501(a)(1), 19.2. In order to readjudicate a claim which has been previously considered, a claimant must present new and relevant evidence. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). In the November 2019 decision on appeal, the AOJ determined that the appellant's discharge under other than honorable conditions is a bar to the receipt of VA compensation benefits. The November 2019 decision included "a copy of the evidence used and reasons for the decision," which was limited to a copy of the May 1975 VA administrative decision. As such, where there was no further analysis or discussion of evidence received after the August 1975 decision, the Board finds that the AOJ implicitly determined that new and relevant evidence had not been received to warrant readjudication of the appellant's claim. In considering the evidence allowed during the period under review, the appellant presented testimony concerning the facts and circumstances surrounding his discharge under other than honorable conditions at a July 2019 hearing before the AOJ. The appellant's July 2019 testimony is new, as it was not previously of record. Additionally, the appellant's testimony provides information that tends to prove or disprove whether the character of his discharge is a bar to the award of VA compensation benefits. Accordingly, new and relevant evidence has been received to warrant readjudication of the issue of whether the appellant's discharge under other than honorable conditions is a bar to the award of VA compensation benefits. In reaching this determination, the Board recognizes that official service department records were newly associated with the claims file in June 2018. See 38 C.F.R. § 3.156(c). While such records were newly associated with the claims file after the final August 1975 VA decision, those service records that existed at the time of the August 1975 VA decision do not tend to prove or disprove the question of whether the appellant's discharge under other than honorable conditions is a bar to the award of VA compensation benefits. As such, the Board finds such additional records that existed at the time of the August 1975 VA decision are not relevant to the current appeal. REASONS FOR REMAND In order to qualify for VA compensation benefits, a claimant must first establish "veteran" status. 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). Here, the AOJ determined the appellant's discharge under other than honorable conditions was based on willful and persistent misconduct. Under 38 C.F.R. § 3.12(d)(4), a discharge under other than honorable conditions based on willful and persistent misconduct is considered to have been issued under dishonorable conditions. A discharge because of willful and persistent misconduct is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offenses causing such discharge. See 38 C.F.R. § 3.12(b); see also 38 C.F.R. § 3.354(a) (defining insanity). Service records do not contain any disciplinary actions for approximately the first year of the appellant's service. The appellant received nonjudicial punishment (NJP) for unauthorized absence from November 26, 1973 to December 3, 1973. See Offenses and Punishments. In February 1974, the appellant was found guilty at summary court martial of unauthorized absence from December 30, 1973 to January 29, 1974. See February 1974 Conviction by Court Martial; see also Winter v. Principi, 4 Vet. App. 29, 32 (1993) (unauthorized absence in excess of 30 days is a severe offense unde the Uniform Code of Military Justice, punishable by confinement for up to one year and the issuance of either a bad conduct or dishonorable discharge). In May 1974, the appellant requested discharge for the good of the service in lieu of trial by court martial. In connection with the current appeal, the appellant has indicated that the charges referred to court martial in May 1974 were taken out of context and/or inaccurate. In May 1974 correspondence, the staff judge advocate assigned to represent the appellant reported that he had advised the appellant not to request discharge for the good of the service because many of the charges referred against the appellant were not sustainable at a court martial. In reviewing the evidence for the period under review, the appellant indicated that he was "out of [his] head" in service. See July 1975 Regional Office hearing transcript. At the July 2019 hearing, the appellant testified that the offenses leading to his discharge from service, in particular his unauthorized absence from December 30, 1973 to January 29, 1974, occurred after an officer threatened to have him sent to Vietnam to be killed. See July 2019 Regional Officer hearing transcript; see also October 2019 VA Form 21-526EZ (claiming entitlement to service connection for posttraumatic stress disorder). Prior to his discharge under other than honorable conditions, the appellant reported that orders were issued sending him to Okinawa for service in Vietnam. The appellant reported he would have tried to get out the military by any means necessary following the officer's threat to have him killed. In this case, it does not appear that the AOJ attempted to verify the appellant's perceived stressor, which he indicated was the threat of orders to serve in Vietnam to be killed. Additionally, while service treatment records are silent for diagnosis of or treatment for mental health symptoms, the Board finds the evidence discussed above raises the issue of insanity as an exception to the bar to VA compensation benefits under 38 C.F.R. § 3.12(d)(4). 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 Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009). The Board finds remand is necessary to correct duty to assist errors that occurred prior to the November 2019 decision on appeal. Here, the Board finds that the AOJ should have undertaken efforts to verify the appellant's reported in-service stressor, and obtain a medical opinion as to whether the appellant's behavior at the time of the offenses leading to his discharge was due to disease. Id. at 421 (the duty to assist applies to all claimants, regardless of whether they have established veteran status). The matters are REMANDED for the following action: 1. Undertake efforts to verify the appellant's reported in-service stressor of orders to serve in Vietnam. 2. Obtain a medical opinion from a psychologist or psychiatrist as to whether the appellant's behavior at the time of the offenses resulting in his discharge was due to disease. The need for an examination is left to the discretion of the psychologist or psychiatrist. The psychologist or psychiatrist should opine as to whether, at the time of the appellant's offenses in service, he exhibited: (1) due to disease, a more or less prolonged deviation from his normal method of behavior; (2) due to disease, interfered with the peace of society; or (3) due to disease, so departed from accepted community standards as to lack the adaptability to make further adjustment to social customs of his community. V. Chiappetta 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.