Citation Nr: 21011130 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-09 727 DATE: March 1, 2021 REMANDED The issue of whether the character of the appellant's discharge 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 October 1970 to October 1973. He received a discharge under other than honorable conditions due to unfitness. This matter is on appeal from a March 2015 Regional Office (RO) decision. In August 2019, the appellant testified before the undersigned in a videoconference hearing. A transcript of the proceedings has been associated with the record. The Board notes that the appellant’s character of discharge was previously on appeal and denied in August 1993. Since that denial, additional relevant service department records were associated with the claims file pursuant to November 2019 Board remand instructions. Under 38 C.F.R. § 3.156 (c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement under subpart (a) that there first be new and material evidence to reopen the claim. See Vigil v. Peake, 22 Vet. App. 63 (2008) (official service department records are new and material evidence, thus requiring de novo review or reconsideration, rather than as a claim to reopen). Accordingly, the Board will consider the claim pertaining to the character of the appellant’s discharge on the merits, without addressing any threshold issue of whether new and material evidence has been received to reopen the claim. See 38 C.F.R. § 3.156 (c). 1. The issue of whether the character of the appellant's discharge constitutes a bar to VA compensation benefits is remanded. The Board regrets the additional delay, but remand is again necessary prior to adjudication of this issue. 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). 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 August 1993 Administrative Decision determined that the appellant was discharged due to willful and persistent misconduct, and 38 C.F.R. § 3.12 (d) (4) barred receipt of compensation benefits. The Administrative Decision also found that he was entitled to health care under Chapter 17, Title 38 United States Code. The appellant, in essence, argues that the insanity provisions of 38 U.S.C. § 5303 (b) should apply to lift this regulatory bar to benefits. Initially, the Board notes that, despite the previous remand for service department records, the appellant’s service treatment records appear to be incomplete. Service treatment records recently obtained are limited to the appellant’s entrance examination and Chapter 13 examinations. The appellant served for approximately three years prior to his discharge, and recounted at least one incident of an injury, stitches to his face, which required medical treatment while deployed to Germany. There is no record of this treatment, though there is special court-martial documentation regarding the altercation that lead to this injury. It is unclear whether the appellant’s records from Germany, to include the German clinic that treated his facial injury, were specifically sought prior to adjudication. Thus, remand is necessary to ensure that the appellant’s complete service treatment records are sought prior to adjudication on the merits. Additionally, the appellant is asserting that he developed posttraumatic stress disorder (PTSD) in response to physical abuse during service, and this PTSD caused him to “act out”, as reflected by the offenses underlying his other than honorable discharge. The appellant has presented evidence of a present diagnosis of PTSD associated with an in-service assault, as well as lay statements regarding his mental state during service in support of this contention. Accordingly, an examination assessing the appellant’s mental health during service is also necessary on remand. The matters are REMANDED for the following action: 1. Ensure that all service treatment records have been associated with the claims file, to include those from any treatment in Germany. 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. 2. Following completion of the foregoing, schedule a VA examination to assess the appellant’s mental state leading up to his discharge from service. The examination 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 is 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 should review the entire claims file, including a copy of this remand. After a thorough review of the record, the specialist 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? • Summary court-martial for drunk and disorderly conduct, assault, and resisting arrest in February 1973; and, • Four periods of absence without leave totaling 64 days. 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. (Continued on the next page)   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. Eric S. Leboff 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.