Citation Nr: 21008516 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-33 261 DATE: February 17, 2021 ORDER New and material evidence having been received, the issue of whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) compensation benefits is reopened. REMANDED The issue of whether the character of the appellant's discharge constitutes a bar to VA compensation benefits is remanded. FINDINGS OF FACT 1. In an unappealed March 2005 decision, the Regional Office (RO) denied entitlement to VA compensation benefits due to the character of the appellant’s discharge from service. 2. Evidence received since the March 2005 denial is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received since the March 2005 denial of VA compensation benefits due to the character of the appellant’s discharge, and the issue is reopened. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active duty service with the United States Army from November 1985 to October 1991. She received a discharge under other than honorable conditions due to misconduct. This matter is on appeal from a December 2010 Regional Office (RO) decision. In December 2020, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. 1. New and material evidence having been received, the issue of whether the character of the appellant's discharge constitutes a bar to VA benefits is reopened Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The appellant seeks entitlement to VA compensation benefits, which were previously denied in March 2005 due to the character of her discharge from active duty service. The appellant did not file a notice of disagreement, nor was new and material evidence received within one year of the decision. Additionally, no VA treatment records were physically or constructively associated with the claims file within one year of the denial. As a result, this decision became final. See 38 C.F.R. § 3.156; Lang v. Wilkie, 971 F.3d 1348 (2020). Since the March 2005 denial, the appellant submitted testimonial evidence regarding her mental health during active duty service in support of her contention that she was insane, per VA regulation, at the time of the commission of the offenses underlying her discharge. In her December 2020 hearing before the undersigned, she discussed her mental health state around the time of her discharge. She reported feeling severely depressed following severe health issues, the death of her father, and the loss of her home. She stated that she did not remember much of that period of time, and blacked out or repressed portions of those events. This evidence is neither cumulative nor redundant of the evidence of record at the time of the prior final denial. It also relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Accordingly, the claim of entitlement to VA compensation benefits is reopened. REASONS FOR REMAND 1. The issue of whether the character of the appellant's discharge constitutes a bar to VA benefits is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain the appellant’s complete service records, as well as a medical opinion with regard to her mental state during service. Initially, the Board notes that the appellant’s service department records associated with the claims file are incomplete. The first request for the appellant’s records only specified the facts and circumstances surrounding her discharge with a subsequent request regarding records pertaining to her posttraumatic stress disorder claim. As a result, only a portion of her service records were obtained prior to adjudication. The appellant’s attorney specifically asserts that the appellant had two periods of honorable service prior to her in-service offenses as defined by 38 C.F.R. § 3.13(c). Unfortunately, given the limited scope of the initial records request, the Board cannot confirm the dates of her prior enlistment contracts until that evidence has been received. Further, there is an indication that the service treatment records presently associated with the claims file are also incomplete. The appellant’s discharge proceedings indicate that she underwent a mental status evaluation, as well as a physical evaluation, prior to her separation. Neither of these records appear to be associated with the claims file. Accordingly, remand is necessary in order to obtain the appellant’s complete service department records. Finally, the appellant has raised the issue of insanity around the time of the in-service offenses underlying her discharge. A March 2005 Administrative Decision determined that a regulatory bar to compensation benefits was in effect due to the appellant’s misconduct leading to her discharge from service. In order to overcome this bar to benefits, the appellant asserts that the criteria of 38 C.F.R. § 3.12(b) apply. Evidence of record reflects a significant mental health history, including diagnoses of posttraumatic stress disorder, depression, and drug abuse. Given the appellant’s testimony regarding her specific symptomatology around the commission of the in-service offenses, a medical examination and opinion are warranted in order to determine if she met the criteria for insanity, per VA regulation, prior to her discharge from service. The matters are REMANDED for the following action: 1. Attempt to obtain, through all indicated and appropriate sources, the appellant’s service department records, including complete personnel and service treatment records. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the appellant must be notified. The Veteran should also be notified that she may submit any service personnel records in her possession to support her claim. 2. Following completion of the foregoing, obtain a VA medical opinion from an appropriate health care provider to assess the appellant’s mental state leading up to her discharge from service. An examination may be scheduled if the examiner deems it necessary, and may utilize telehealth or other electronic means of interviewing if social distancing or pandemic restrictions remain in effect. The clinician should review the entire claims file, including a copy of this remand. After a thorough review of the record, the examiner should discuss the following: (a.) Acknowledge understanding of the following definition of “insanity” per 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.” (b.) Is it at least as likely as not (a 50 percent or greater probability) that the appellant was insane, per the aforementioned VA regulation, at the time she committed the below offenses leading to her discharge from service? • April 1991 positive drug test for marijuana; • July 1991 positive drug test for cocaine; and, • August 1991 civilian charge of conspiracy to distribute cocaine. (c.) Please discuss the appellant’s physical health during service, including ectopic pregnancies and related procedures, as well as any pertinent post-service medical records. The examination report should specifically state that a review of the record was conducted. The clinician should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant and her representative an opportunity to respond, and return the case to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.