Citation Nr: 21008991 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-08 337 DATE: February 18, 2021 REMANDED The issue of whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) compensation benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Army from July 2015 to November 2017. He received a discharge under other than honorable conditions due to misconduct. This matter is on appeal from a May 2018 Regional Office (RO) decision. 1. The issue of whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) compensation benefits is remanded. The Board regrets the delay, but remand is necessary in order to obtain an adequate medical opinion with respect to the appellant’s mental state around the time of the commission of his in-service misconduct. For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most 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. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12 (a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 (c) applies. 38 C.F.R. § 3.360 (b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12 (c). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12 (d). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the Veteran was insane. 38 U.S.C. § 5303 (b). 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 or her normal method of behavior; or who interferes with the peace of society; or who has departed (become antisocial) from the accepted standards of the community to which by birth and education he/she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he/she resides. 38 C.F.R. § 3.354 (a). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). Behavior which is generally attributable to a substance abuse disorder does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall within the scope of the term insanity, and, therefore, does not constitute insane behavior. Personality disorders, including antisocial personality disorder, do not satisfy the definition of insanity as contemplated at 38 C.F.R. § 3.354. VAOPGCPREC 20-97. In addition, mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). Rather, insane behavior is defined as a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, the person is rendered incapable of managing himself or his affairs, which is a concept akin to the level of incompetency generally supporting appointment of a guardian. VAOPGCPREC 20-97. Insanity must be shown to exist, due to disease, only at the time of the commission of the offense leading to discharge, not that insanity caused the misconduct. Beck v. West, 13 Vet. App. 535, 539 (2000). In other words, there need not be a causal connection between the insanity due to disease and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993) and abrogated on other grounds by Gardner v. Shinseki, 22 Vet. App. 415 (2009); see also VAOPGCPREC 20-97. In the present case, the appellant was discharged under other than honorable conditions for multiple offenses. In October 2016, he wrongfully damaged government property by altering his military identification card to reflect that he was of legal drinking age. At that time, he also impersonated a noncommissioned officer. In December 2016, he was charged with aggravated assault when he pointed a firearm at multiple individuals. In June 2017, he provided a false official statement. In October 2017, he was administratively discharged. The appellant believes that he was insane, per VA regulations, at the time of the commission of these offenses. He relates his mental condition to receipt of a “bad” dose of the smallpox vaccine. In June 2016, the appellant sought treatment for chest pain and shortness of breath approximately a week and a half after receiving a smallpox vaccine. He received inpatient treatment for approximately three days. During that time, he exhibited symptoms of slow speech and anxiety, though he was observed having a normal conversation and not stuttering outside of the formal evaluation. He was diagnosed with pneumomediastinum, anxiety, hematemesis, and chest pain. Records show severe anxiety with a speech impediment or an adjustment syndrome. The esophagogastroduodenoscopy (EGD) procedure report showed a normal esophagus, stomach, and duodenum. The appellant was also diagnosed with myocarditis. Subsequent records reflect varying responses on his psychiatric symptoms and alcohol use. During the administrative separation proceedings, the appellant reported concerns with respect to his use of alcohol with “deal with his mother’s illness.” A February 2017 examination was within normal limits. The appellant endorsed difficulty sleeping, and the cardiology and pulmonology evaluations were normal. He denied stammering or stuttering, nervous trouble, counseling, depression, and excessive worry. In March 2017, the appellant reported being the victim of a sexual assault, and an investigation was conducted into the issue. In May 2017, the appellant was in a motor vehicle accident and suffered a neck sprain. A June 2017 mental status evaluation revealed positive screens for posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI), which were later determined to be false positives. The appellant exhibited normal cognition, behavior, perceptions, and impulsivity. He was able to understand and participate in administrative proceedings and appreciate the difference between right and wrong. During the evaluation, the appellant did “not seem truthful in his reports.” The appellant underwent a VA examination to assess his claim of PTSD. He was diagnosed with the disability, which the examiner related to the in-service sexual assault. In a January 2018 statement, the appellant reported developing a stutter and heart problems in response to the smallpox vaccine. He reported becoming depressed, using alcohol to self-medicate, and he indicated that he voluntarily enrolled in a substance abuse program during service. In May 2020, a private opinion was obtained purportedly with respect to the appellant’s mental condition during service. While the private clinician reported reviewing “a voluminous amount of information”, no specifics with regard to the nature of this information are provided. As the same clinician referred to the appellant erroneously as having served in the United States Marine Corps, it is unclear how thoroughly any of this information was reviewed. Instead of providing a coherent opinion with respect to the appellant’s sanity during his in-service offenses, the private clinician offered treatises on the history of smallpox, biological terrorism, and the importance of lung function in breathing. The opinion, which purports to reduce this highly complicated material such that even non-medical professionals, such as lawyers, could understand, is mostly unreadable with tangent upon tangent diving into the complex history of side effects related to the smallpox vaccine instead of coherently and succinctly applying these side effects to the appellant’s condition. When the appellant is referenced, the private clinician appears to alternatively argue that the anxiety and fear of myocarditis and inflammation that restricted his breathing caused his mental illness, but also that his inflammatory response was of such a severity as to impact his brain function, which also could have caused his mental illness during this period. Even when attempting to specifically address “insanity”, the private opinion falls short. The clinician predominately states that the appellant’s misconduct was “at least 50 [percent] possibility” due to his mental health disease “developed secondary to response of the brain to extremely severe abnormal pro-inflammatory response of the immune system” following the smallpox vaccine. It is unclear, based upon the service treatment records, why this exaggerated inflammatory response with an impact on the appellant’s cognitive functioning was not addressed more thoroughly in his multiple mental status evaluations or inpatient treatment. Additionally, in support of the finding that the appellant exhibited an abnormal inflammatory response, the clinician states that there was damage to the appellant’s upper gastrointestinal tract, which runs contrary to the esophagogastroduodenoscopy procedure report that showed a normal esophagus, stomach, and duodenum. The private clinician also hinges his opinion on the hypothesis that the appellant lied about his sexual assault during service, and this was, apparently, evidence of his brain damage. Given the tangential natures of this opinion, as well as the inaccurate and unknown factual premises on which the clinician bases his conclusions, the May 2020 private opinion is inadequate to sustain a finding of insanity sufficient to lift the regulatory bar to compensation benefits in this case; however, due to the appellant’s in-service mental health reports of anxiety around his health, a VA medical examination is necessary on remand. If the appellant wishes to procure an addendum from this same private clinician, it would benefit the opinion if the clinician could constrain his discussion of history, as well as references to Alice in Wonderland and Kansas, and instead focus specifically on the favorable and unfavorable evidence of record pertaining to the appellant’s mental state during service. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the appellant should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the appellant should be documented in the record. 2. Following completion of the foregoing, obtain a VA medical opinion from a specialist or specialists to assess the appellant’s mental state leading up to his discharge from service, to include any impact of the smallpox vaccine on his mental health. An examination or examinations may be scheduled if the specialist(s) deems it necessary, and may utilize telehealth or other electronic means of interviewing if social distancing or pandemic restrictions remain in effect. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. The specialist(s) is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the appellant’s claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The specialist(s) should review the entire claims file, including a copy of this remand. After a thorough review of the record, the specialist(s) 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 he committed the below offenses leading to his discharge from service? • October 2016: wrongful damaging of government property by altering a military identification card to reflect that the appellant was of legal drinking age; • October 2016: impersonation of a noncommissioned officer; • December 2016: aggravated assault; and, • June 2017: providing a false official statement. (c.) Please specifically discuss the May 2020 private opinion addressing the appellant’s mental health as due to a smallpox vaccine. Address the private opinion’s assertion that either inflammatory process caused the appellant’s insanity or his anxiety around his health. The examination report should specifically state that a review of the record was conducted. The specialist 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 his representative an opportunity to respond, and return the case to the Board. B. MULLINS 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.