Citation Nr: 21009359 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-30 627 DATE: February 22, 2021 REMANDED The issue of whether the character of the Appellant's discharge is a bar to VA compensation benefits is remanded. REASONS FOR REMAND The Appellant had active duty service with the United States Navy from December 1990 to September 1992.He was discharged under other than honorable conditions due to misconduct. In February 2017, the Board denied the appeal. In a September 2017 Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court), vacated the Board’s denial and remanded appeal. This matter was last before the Board in January 2020. The issue of whether the Appellant's discharge is a bar to receipt of VA benefits is remanded. As previously directed, this matter is being remanded pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998) for failure to comply with the prior Remand directives. In accordance with the January 2020 Board remand, additional attempts were directed to obtain outstanding psychiatric records stemming from the Appellant’s custody aboard the USS O’Bannon in 1992. However, as asserted by the Appellant and his representative, the certification of this appeal was premature in light of ongoing development concerning the missing records, as demonstrated by a December 2020 email indicating that “PIES Request is still pending, no action taken.” Thus, the Board finds that development is warranted for additional attempts to exhaust all avenues for the missing treatment records with a formal finding of unavailability should they be proven to be lost. Additionally, in viewing the appellant’s arguments broadly the Board finds that he has argued that he was not responsible for his actions due to mental health-related insanity pursuant to 38 C.F.R. § 3.354. See i.e. August 2020 Appellant correspondence (“evidence of record to establish that an episode of insanity did occur during military service”); see also January 2018 Brother statement (“was ‘losing his mind’ and expressed inability to adjust…suicidal”). VA is required to obtain a medical opinion to determine whether a claimant's behavior during the offenses that led to his discharge was due to psychiatric disability. Gardner v. Shinseki, 22 Vet. App. 415 (2009). The matters are REMANDED for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR: In October 2017, the Board instructed the RO to conduct a search for potentially relevant mental health treatment records from the Appellant’s assignment to the Corrective Custody Unit on the U.S.S. O’Bannon. In response, the RO contacted the National Personnel Records Center (NPRC) in order to request the file. The NPRC reported that the Appellant’s file was checked out to the Navy-Marine Corps Board for Correction of Records. On VA’s inquiry, the Board for Correction of Naval Records reported that the “records currently in possession of the Board of Naval Records do not appear to contain any medical records” for the Appellant. The Appellant’s record was to be returned to the NPRC the following day. The RO did not request the file from the NPRC following its return. Instead, it concluded that it had received a negative response, and the case returned to the Board for adjudication. This search does not substantially satisfy the Board’s October 2017 remand instructions. The determination of whether the duty to assist has been satisfied is for VA, and not the service department entity. Further, the Board for Correction of Naval Records report is not determinative, but qualified because it advised that it only “appears” that there are no medical records associated with the file. Its reply does not constitute an appropriate negative response, and the RO must request the file from the NPRC and conduct its own review. Accordingly, remand is necessary in order to rectify this due process error. Stegall v. West, 11 Vet. App. 268, 271 (1998). The remand directives follow. 2. Attempt to obtain, through all indicated and appropriate sources, the appellant’s complete service treatment records, clinical treatment records, and personnel records, to specifically include any mental health treatment records generated while the Appellant was assigned to the Corrective Custody Unit aboard the U.S.S. O’Bannon. Such sources should include: (a.) the National Archives and Records Administration; (b.) the VA Records Management Center; (c.) the National Personnel Records Center; (d.) Joint Services Records Research Center; All efforts to obtain these records should be documented. If the records do not exist, or further efforts to obtain them would be futile, issue a formal finding documenting the efforts undertaken and notify the appellant and his representative in accordance with 38 C.F.R. § 3.159 (e) 3. Regardless of whether outstanding mental health treatment records are located and associated with the claims file, make arrangements for a VA medical opinion, with an examination only if deemed necessary by the examiner. Should an examination be conducted, all testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination/medical opinion. The examiner is asked to opine as to whether the Appellant was insane for VA purposes at the time of his UCMJ infractions which underly his September 1992 dishonorable separation from service due to misconduct. The examiner is informed that for VA purposes “[a]n insane person 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, (1) a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) 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. 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.” After a review of the claims file the examiner should answer the following: a.) At the time of the Uniform Code of Military Justice (“UCMJ”) infractions underlying his September 1992 administrative separation, did the Appellant exhibit a more or less prolonged deviation from his normal method of behavior? b.) At the time of the UCMJ infractions underlying his September 1992 administrative separation, did the Appellant, due to disease interfere with the peace of society? c.) At the time of the UCMJ infractions underlying his September 1992 administrative separation, was the Appellant, due to disease 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? d.) Was the Appellant otherwise insane at the time of the UCMJ infractions underlying his September 1992 administrative separation? A rationale should be provided for the opinions which incorporates acknowledgement of the appellant and his relatives lay statements and the medical evidence of record. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.