Citation Nr: 21011528 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 20-27 362 DATE: March 2, 2021 ORDER New and material evidence having been received, the issue of whether the character of the appellant's discharge from service constitutes a bar to receipt of Department of Veterans Affairs (VA) compensation benefits is reopened. REMANDED The issue of whether the character of the appellant’s discharge from service constitutes a bar to receipt of VA compensation benefits is remanded. FINDINGS OF FACT 1. In a May 1984 decision, the Board denied entitlement to VA benefits due to the character of the appellant’s discharge. 2. New evidence received since the May 1984 decision relates to an unestablished fact necessary to substantiate the claim for benefits and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1984 Board decision is final. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to VA compensation benefits due to the character of the appellant’s discharge. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active duty service with the United States Army from July 1976 to July 1977. He received a discharge under other than honorable conditions for the good of the service following a period of absence without leave (AWOL). This matter is on appeal from a January 2019 Regional Office (RO) decision. In October 2020, the appellant testified before the undersigned in a videoconference hearing. A transcript of the proceedings has been associated with the record. In August 2018, the appellant filed a motion to Advance on the Docket (AOD) due to financial hardship and poor health. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. An appeal may also be advanced if the case involves interpretation of a question of law of widespread application affecting other claims, although this is extremely rare. Any motion for advancement should be supported by pertinent documentation. The Board has considered the appellant’s AOD and accompanying evidence but unfortunately finds that the appellant has not submitted sufficient evidence to demonstrate the necessity of an AOD due to severe financial hardship or serious illness. The appellant presented evidence of a foreclosure of his late mother’s home, but subsequent VA treatment records and testimony reflect that he presently resides on a separate property. He additionally provided information regarding a possible upcoming knee surgery as his basis for AOD due to his health. Unfortunately, neither of these circumstances constitute the type of serious or severe situations in which AOD may be granted. Thus, despite the appellant’s contentions, the motion for AOD is denied. 1. New and material evidence having been received, the issue of whether the character of the appellant’s discharge from service constitutes a bar to receipt of VA compensation benefits is reopened. Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103 (a), 7104(a); 38 C.F.R. § 20.1100 (a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the present case, the Board denied the appellant’s claim of entitlement to VA benefits in a May 1984 decision due to the character of his discharge. Since that decision, the appellant provided evidence pertaining to his mental state during service, as well as a post-service diagnosis of posttraumatic stress disorder (PTSD) due to military sexual trauma (MST). The credibility of this evidence is to be presumed for the purposes of reopening a prior final denial. This evidence is new as it was not previously of record at the time of the May 1984 decision, and it is material as it relates to the appellant’s mental state during the offense leading to his other than honorable discharge. Thus, this new evidence, in conjunction with VA’s duty to assist, compels reopening. Shade, 24 Vet. App. at 117. REASONS FOR REMAND 1. The issue of whether the character of the appellant's discharge from service constitutes a bar to receipt of VA compensation benefits is remanded. 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 appellant enlisted in July 1976, and, subsequent to competing training, deployed to Germany. While in Germany, he went AWOL for 83 days and returned to the United States. Following his arrest by civilian authorities, he was returned to military control and processed for discharge. In July 1977, the appellant’s personnel records reflect a voluntary request for discharge for the good of the service. The record reflects divergent motivations for the appellant’s AWOL. Prior to June 2017, the appellant argued that he went AWOL because he was not supposed to be deployed overseas. Purportedly, his recruiter promised his mother that, if he were to enlist, he would remain in the United States. When the appellant was deployed to Germany following training, he saw this as a breach of this agreement and sought to return home. More recently, the appellant asserts that the VA regulations pertaining to insanity should lift the regulatory bar to benefits. Beginning in June 2017, the appellant reported two instances of MST during his assignment to Germany, which caused him to go AWOL. The appellant’s July 1977 separation examination included a mental status evaluation that was normal, finding no evidence of significant mental illness or lack of capacity to understand or participate in board proceedings; however, the appellant self-reported symptoms of trouble sleeping, depression or excessive worry, and nervous trouble. Post-service VA treatment records detail two instances of MST during service. The appellant also provided details regarding the stressors in August 2018, along with a Disability Benefits Questionnaire (DBQ) diagnosing him with PTSD and depression. In May 2020, the appellant underwent a VA examination to determine whether his PTSD was related to service. The Board regrets the additional delay, but remand is necessary in order to remediate two duty to assist errors. Initially, the Board notes that the appellant’s complete personnel records have not been sought and associated with the claims file. The multiple previous requests for personnel documentation have focused on obtaining the facts and circumstances of the appellant’s discharge. As the appellant references additional information, such as a previous request for a hardship discharge, as well as his performance evaluations, a complete copy of his personnel records is necessary prior to adjudication. Furthermore, while a VA examination was conducted in May 2020 to assess the appellant’s claim of PTSD due to MST, an opinion regarding his mental state during his period of AWOL was not obtained. Evidence of record presently only indicates that he went AWOL a few months after the reported MST. Thus, on remand, a medical opinion with respect to the appellant’s mental state around the time of his AWOL is necessary. The matters are REMANDED for the following action: 1. Attempt to obtain, through all indicated and appropriate sources, the appellant’s personnel 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. 2. 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. 3. Following completion of the foregoing, obtain a VA medical opinion from a specialist to assess the appellant’s mental state leading up to his discharge from service. An examination may be scheduled if the specialist 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 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 offense leading to his discharge from service? • AWOL from March 31, 1977, to June 21, 1977. (c.) Please specifically discuss the appellant’s claimed MST, as well as any pertinent post-service medical records. 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. 4. 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 an opportunity to respond, and return the case to the Board. Thomas H. O'Shay 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.