Citation Nr: 21012722 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-32 610 DATE: March 5, 2021 ORDER The character of the Veteran’s discharge from service is not a statutory or regulatory bar to the receipt of Department of Veterans Affairs (VA) benefits. Entitlement to service connection, for VA disability compensation purposes, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran was insane, as defined by VA regulations, at the time of the offenses that resulted in his bad conduct discharge by reason of the sentence of a special court martial. 2. The evidence of record is at the very least in equipoise as to whether the Veteran’s current diagnosis of PTSD is causally related to a verified in-service stressor. CONCLUSIONS OF LAW 1. The criteria for status as a veteran and basic entitlement to VA benefits have been met. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.354. 2. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1982 to May 1985. The issue as to whether the character of the Veteran’s discharge from service constitutes a bar to the receipt of VA benefits was previously remanded by the Board in September 2017 and November 2019 for additional development. The agency of original jurisdiction (AOJ) has substantially complied with the Board’s remand directives, and the evidence of record is sufficient to proceed with a decision. Character of Discharge In order to qualify for VA compensation benefits, a claimant or the party upon whose service the claimant predicates the claim must be a “veteran.” A veteran is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Thus, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). In this case, the AOJ found that the character of the Veteran’s discharge is a bar to the receipt of VA benefits based on willful and persistent misconduct. See September 2010 administrative decision; 38 C.F.R. § 3.12(d)(4). Under 38 C.F.R. § 3.1(n), the term “willful misconduct” means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. A discharge from service based on willful and persistent misconduct is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense(s) causing such discharge. 38 C.F.R. § 3.12(b). In reviewing service records pertaining to the Veteran’s discharge, the Veteran was advised of the Navy’s policy concerning the drug abuse urinalysis program and the legal consequences of illegal drug use, to include trial by court martial or administrative separation from the Navy. See April 1982 Drug Abuse Statement of Understanding. The Veteran completed his initial training without incident and was assigned as an Interior Communications Electrician Fireman on the U.S.S. Hawkbill submarine from December 1983 to February 1984. In March 1984, the Veteran pled guilty to the charges of introducing marijuana onto a military installation, possession of marijuana with intent to distribute, distribution of marijuana, and use of marijuana. See March 1984 Memorandum of Pretrial Agreement. The Veteran was sentenced by a special court martial to a bad conduct discharge. See March 1984 Special Court Martial Order. While available service records contain little information about the nature and circumstances of the Veteran’s offenses related to drugs in service, the Veteran subsequently indicated that he used marijuana to self-medicate symptoms of PTSD following a near death experience in service. See November 2013 VA Form 9. The Veteran indicated that he did very well in the Navy prior to the offenses resulting in his bad conduct discharge. See June 2009 VA Form 21-4138; see also Enlisted Performance Record. The Veteran reported that while the submarine was deployed for underwater operations in the Western Pacific, the submarine surfaced in order to secure equipment that had not been properly secured. See June 2009 VA Form 21-4138. The Veteran reported that swells unexpectedly swept over the submarine, and a large amount of water poured into an open hatch of the submarine. The Veteran reported he was standing in a pool of ankle-deep water that had flooded into the submarine, and the nearby high voltage electrical equipment was arcing and sparking. The Veteran reported he could smell burning electrical and metal equipment. In December 2009, the Veteran submitted numerous statements from fellow sailors describing the incident as reported by the Veteran. M.C.L. recalled the water going down the weapons shipping hatch of the submarine like a drain, and reported some of the electrical equipment was destroyed by fire. B.A.H. reported the submarine took on enough water to fill torpedo room bilges, and that sailors in unaffected parts of the submarine believed those in the flooded areas would be lost. S.C. indicated that leadership seemed unaware of whether the water flooding into the submarine was an emergency until it was reported that electrical equipment was sparking and smoking. S.C. reported he observed the electrical equipment smoking as he was passing through to another area of the submarine. In October 2020, the Veteran submitted a statement from the retired Navy captain that was in command of the U.S.S. Hawkbill, which confirms the incident on the submarine. In a March 2009 letter, Dr. P.D.B. reported the Veteran had a current diagnosis of bipolar II disorder and PTSD. Dr. P.D.B. indicated the Veteran reported being terrified following the experience on the submarine as described above. See also April 1999 private mental health treatment records. The Veteran reported that he would have done anything to get off the submarine. The Veteran reported he used marijuana in service to calm his flashbacks and night terrors, and that he also gave some marijuana to other service members. In another March 2009 letter, Dr. R.D.D. reported that he had treated the Veteran for four months in 2002. Dr. R.D.D. opined that the Veteran had unrecognized and untreated PTSD as a result of life-threatening circumstances on the submarine. Dr. R.D.D. indicated that the Veteran’s symptoms of PTSD were the most likely compelling factors that led to the Veteran’s subsequent efforts to get out of the Navy through substance abuse and other violations of military regulations. See also March 2009 letter from Dr. T.E.D. (opining the Veteran’s panic to get off the submarine was a flight response, and his depersonalization experiences at the time were classical symptoms of acute stress reaction). In a February 2017 private treatment record, Dr. S.S. noted that, although the Veteran reported he was not particularly injured by the experience on the submarine, the Veteran believed at the time of the incident that he was going to die. Dr. S.S. indicated the incident was so traumatic that the Veteran experienced severe PTSD-like sensations, and that he started drinking and using marijuana when the submarine returned to its home port to suppress his insomnia and anxiety. The Veteran reported that he intentionally brought marijuana into the military installation. Dr. S.S. indicated the Veteran implied it may also have been his intent to be discharged for bringing marijuana onto the military installation. In this case, the issue of insanity was raised by the record. The Board remanded the current appeal in November 2019 to obtain a medical opinion as to whether the Veteran was insane, as defined by VA regulations, at the time of the offenses the resulted in his bad conduct discharge. See also Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (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). Under 38 C.F.R. § 3.354(a), insanity 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.” The term “insanity” refers to a condition involving conduct that deviates severely from the social norm or interferes grossly with the capacity to meet the ordinary demands of life. See VAOPGCPREC 20-97. The determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case. The Veteran was afforded a VA PTSD examination in April 2020. The examiner indicated that the Veteran’s report of the submarine taking on water and imminent danger from electrical fires/arcing was adequate to support a diagnosis of PTSD. The examiner indicated the Veteran used alcohol and marijuana in an attempt to self-medicate his painful symptoms of PTSD, which resulted in his discharge for misconduct. The examiner reported the Veteran demonstrated reckless or self-destructive behavior after the traumatic event occurred. In September 2020, the examiner provided an addendum to the examination, in which the examiner stated that a well-documented trauma more than sufficient to lead to PTSD was described by the Veteran. The examiner reported a symptom pattern diagnostic of PTSD was present since the service-connected trauma, to include self-medication with alcohol and marijuana in an attempt to diminish painful PTSD symptoms. The examiner opined it was at least as likely as not that the Veteran was insane, as defined by VA regulations, as a result of PTSD at the time of the offenses that resulted in his bad conduct discharge. The Board has considered the entire record, and resolving reasonable doubt in favor of the Veteran, finds that he was insane, as defined by VA regulation, at the time of the offenses that led to his bad conduct discharge. Although service treatment records are silent for any diagnosis of a mental disorder at the time of the Veteran’s misconduct, the Veteran has submitted multiple private medical opinions indicating the Veteran was experiencing symptoms of PTSD following the incident on the U.S.S. Hawkbill, which he self-medicated with alcohol and marijuana. Gardner, 22 Vet. App. at 419. Such evidence is supported by the September 2020 VA medical opinion in which the examiner reported a symptom pattern diagnostic of PTSD was present since the service-connected trauma, to include self-medication with alcohol and marijuana in an attempt to diminish painful PTSD symptoms. Additionally, the Board finds that the particular facts of this case indicate the Veteran exhibited, due to PTSD, a more or less prolonged deviation from his normal method of behavior. Although the Veteran reported experimental use of marijuana prior to entering service, the evidence of record contains no indication that the Veteran had a history of legal involvement or disciplinary infractions prior to his special court martial in March 1984. The Veteran’s private treatment records associated with the claims file suggest that the Veteran’s PTSD and his self-medication of symptoms grossly interfered with his capacity to meet the ordinary demands of life, including maintaining employment and relationships. In this particular case, the Board finds the evidence of record is at least in equipoise as to whether the Veteran meets the definition of insanity under 38 C.F.R. § 3.354(a), where he exhibited, due to disease, a more or less prolonged deviation from his normal method of behavior. Accordingly, the character of the Veteran’s discharge from service is not a bar to the receipt of VA disability benefits. 38 C.F.R. § 3.12(b). Service Connection – PTSD In 2009, the Veteran filed a claim for entitlement to service connection for PTSD. See February 2009 VA Form 21-4138; see also May 2009 VA Form 21-526. In a September 2010 letter, VA notified the Veteran that the character of his discharge was a bar to the receipt of VA benefits, and the Veteran initiated this appeal. After several attempts at developing the case, in an October 2020 supplemental statement of the case, the AOJ found that there was not credible supporting evidence that the Veteran’s claimed in-service stressor occurred. In addition, while acknowledging a current diagnosis of PTSD, the SSOC included a specific finding in the analysis that the evidence was against the Veteran’s assertion that his claimed disability (PTSD) was related to an event in service. Although the SSOC did not formally indicate that entitlement to service connection for PTSD was in fact denied, it implicitly did so within the analysis of the document. As such, and in light of the Board’s decision above finding that the character of the Veteran’s discharge is not a bar to VA compensation benefits, the Board finds it has jurisdiction to adjudicate the Veteran’s service-connection claim for PTSD. See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (stating that claimants are entitled to two administrative reviews); Bernard v. Brown, 4 Vet.App. 384, 394 (1993). As the Board is granting the claim, the Veteran is not prejudiced by the fact that the Veteran’s PTSD claim was not first adjudicated by the AOJ in a rating decision, as opposed to the above-referenced SSOC. Entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis conforming to specified diagnostic criteria; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). As discussed above, the medical evidence of record establishes that the Veteran has a current diagnosis of PTSD, which providers have attributed to the Veteran’s reported in-service stressor. With respect to credible supporting evidence that the claimed in-service stressor actually occurred, the Board observes that the Department of the Navy refused VA’s request for the deck logs for the U.S.S. Hawkbill because they are classified. See March 2010 letter from the Naval History and Heritage Command. The Veteran was advised to submit a request for such information under the Freedom of Information Act. It appears the Veteran has submitted multiple FOIA requests for the U.S.S. Hawkbill deck logs without success. See May 2011 VA form 21-4138; see also January 2016 letter from the Naval History and Heritage Command. In this case, the Board finds that the Veteran has submitted credible supporting evidence that the claimed in-service stressor actually occurred despite the fact that the U.S.S. Hawkbill deck logs have not been obtained. The Veteran submitted multiple statements from fellow sailors that attest to the incident as described by the Veteran, to include from the former commander of the submarine. Moreover, the claimed stressor is consistent with the circumstances and conditions of the Veteran’s service. The Veteran served as the Interior Communications Electrician Fireman, and the Veteran reported that he feared for his life as he was standing in a pool of water and the nearby high voltage electronic equipment was sparking and burning. (Continued on Next Page) The Board finds that it is at least as likely as not that the Veteran’s current diagnosis of PTSD is causally related to an in-service stressor that is consistent with the circumstances and conditions of his service, and which is supported by statements from other sailors that reported witnessing the incident. Accordingly, entitlement to service connection for PTSD is granted. V. Chiappetta 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.