Citation Nr: 21009816
Decision Date: 02/23/21	Archive Date: 02/23/21

DOCKET NO. 11-02 978
DATE: February 23, 2021

REMANDED

Basic eligibility for VA home loan guaranty benefits, to include the threshold question of whether the appellant’s character of discharge is a bar to VA benefits.

 

REASONS FOR REMAND

The appellant served on active duty in the United States Marine Corps from February 1968 to January 1970.

The instant matter is on appeal from a May 2010 decision denying entitlement to home loan guaranty benefits.

In April 2017, the appellant testified at a Board hearing.

In the most recent Board decision issued in October 2019, the Board denied the appellant’s claim for entitlement to basic eligibility for VA home loan guaranty benefits on the grounds that the character of his discharge from service was under dishonorable conditions.

The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2020 order, the Court granted the appellant’s and the Secretary’s joint motion for remand (JMR), vacating and remanding the Board’s October 2019 decision 

Basic eligibility for VA home loan guaranty benefits, to include the threshold question of whether the appellant’s character of discharge is a bar to VA benefits.

In the October 2019 decision, the Board found that insanity had not been expressly or reasonably raised as a theory as an exception to the bar to benefits under 38 U.S.C. § 5303(b) and 38 C.F.R. § 3.12(b).  See 38 C.F.R. § 3.354.

In contrast, the parties to the September 2020 JMR found that the Board erred by failing to provide an adequate statement of reasons or bases for its determination that insanity was not reasonably raised by the record.  See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008).

After the JMR, an October 2020 letter from a retired clinical social worker was submitted with his opinion that the behaviors that led to the discharge constitutes insanity for VA purposes.

In light of this theory being raised, the Board finds that a remand for a VA medical opinion is warranted. 

The matter is REMANDED for the following action:

Forward the claims file to an appropriate medical professional in connection with the character of discharge claim.  An examination should only be scheduled if deemed necessary by the medical professional.

After reviewing the complete record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the appellant was insane for VA purposes at the time of the offenses leading to his discharge from service.

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Under 38 C.F.R. § 3.354(a), insanity for VA purposes 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, 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.”  

A rationale should be provided for any opinion reached.

 

 

RYAN T. KESSEL

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.