Citation Nr: 21021311 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-57 169 DATE: April 12, 2021 REMANDED The issue of whether the character of the appellant's discharge constitutes a bar to receipt of Department of Veterans Affairs (VA) benefits is remanded. The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The claim of entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Navy from February 1965 to November 1968. He received a discharge under other than honorable conditions, which was later upgraded to under honorable conditions pursuant to the Department of Defense Special Discharge Review Board in March 1978. This matter is on appeal from an August 2014 Regional Office (RO) rating decision. In February 2020, the appellant testified before the undersigned in a videoconference hearing. A transcript of the proceedings has been associated with the record. 1. The issue of whether the character of the appellant's discharge constitutes a bar to receipt of VA benefits is remanded. The Board sincerely regrets the additional delay, but remand is necessary to correct duty to assist errors prior to adjudication on the merits. Duty to Notify At the outset, the Board notes that these issues on appeal were initially mischaracterized by the agency of original jurisdiction (AOJ). The appellant’s situation is unique as he received an upgraded discharge pursuant to a Department of Defense Special Discharge Review Board (SDRB) in March 1978. Previously, he received an other than honorable discharge due to unfitness. The SDRB upgraded his discharge to under honorable conditions. Unfortunately, under 38 C.F.R. § 3.12(h), such an upgrade does not remove the bar to VA benefits in this case. Accordingly, a character of discharge determination must still be made prior to awarding VA benefits. In February 2004, the appellant’s representative submitted a statement in conjunction with a claim of entitlement to service connection for PTSD. If a rating decision on this claim was issued, it is not presently of record. The appellant filed again in March and April 2013, adding claims of entitlement to service connection for diabetes mellitus and emphysema. He subsequently withdrew his claim pertaining to emphysema in May 2014. In May 2015, the appellant appeared to withdraw his claim pertaining to diabetes mellitus, but the issue was included in both the October 2016 Statement of the Case (SOC) and the November 2019 Substantive Appeal. Additionally, testimony was provided on diabetes mellitus in the February 2020 hearing before the undersigned. Accordingly, the Board finds that the issue remains on appeal. In response to the appellant’s April 2013 claim, the AOJ sent a 5103/Duty to Assist letter in February 2014 informing the appellant of the evidence required to substantiate his claims of entitlement to service connection for PTSD, emphysema, and diabetes mellitus. There was no notice provided regarding the issue of the character of the appellant’s discharge. Similarly, the August 2014 rating decision on appeal did not adjudicate the issue of his character of discharge, instead focusing exclusively on the issue of service connection. The AOJ did not raise or adjudicate the character of the appellant’s discharge until the October 2016 SOC. At that time, the appellant still had not received notice regarding the evidence needed to substantiate his claim in this regard. The undersigned Veterans Law Judge addressed this issue with the appellant prior to his videoconference hearing and this was the first discussion of the evidentiary requirements in this case. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). Where the issue involves the character of discharge, VCAA notice must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). In the present case, the appellant has not received notice regarding the evidentiary requirements of his claim prior to adjudication. The issue has not been cured with the issuance of a compliant VCAA notice before an SOC or Supplemental SOC (SSOC). Further, the appellant has clearly been prejudiced as he was unaware of the evidence he needed to present up until the February 2020 hearing before the undersigned. Accordingly, the Board finds that formal notice must be issued on remand prior to any readjudication on the merits. Duty to Assist Additionally, remand is necessary in order to obtain the appellant’s complete service department records. Based upon the records available, as well as the previous requests for information seeking only to clarify the issue of the character of his discharge, it appears that the AOJ sought only the facts and circumstances surrounding his discharge prior to adjudication. Such a limited request omitted relevant information, such as details of the appellant’s deployment to the waters surrounding the Republic of Vietnam during the Vietnam War. His DD Form 214 notes over one year of foreign and/or sea service, and he has stated that he served on the U.S.S. Intrepid in the Gulf of Tonkin, but development has not been conducted based upon this information to determine any presumptive exposure to herbicide agents. Accordingly, complete service department records must be sought on remand. Furthermore, remand is necessary in order to obtain a medical opinion regarding the appellant’s mental health around the time of the commission of the offenses underlying his discharge. The appellant reportedly developed PTSD in response to witnessing an airplane crash during service and such was also endorsed in an April 2014 VA examination. The AOJ could not verify his reported stressor, however, and the issue was denied. The appellant testified that, following the crash, he became a very different version of himself, noting that everything went “haywire”. His “thoughts ... thinking ability [was] the opposite of” his usual behaviors. He endorsed a positive performance record prior to the crash, though unfortunately his performance reviews were not sought prior to certifying this issue to the Board. Accordingly, the issue of insanity has been raised based upon the appellant’s testimony and evidence of record. An examination on the issue of insanity for VA purposes is also warranted on remand. 2. The claim of entitlement to service connection for PTSD is remanded. See argument in Remand Section 1. 3. The claim of entitlement to service connection for diabetes mellitus is remanded. See argument in Remand Section 1. The matters are REMANDED for the following action: 1. Send the appellant a VCAA cure letter addressing the aforementioned deficiencies regarding his character of discharge. 2. Attempt to obtain, through all indicated and appropriate sources, the appellant’s complete service treatment and 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. 3. Contact the Department of the Navy or other appropriate entity and request any documentation regarding a pending claim to upgrade the character of his discharge with either the Board for Correction of Military Records or the Discharge Review Board. 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 afforded an opportunity to provide these records. 4. The appellant should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the appellant, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the appellant and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. 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, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. 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 examiner 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? • Using another’s liberty card in October 1965; • Assault in November 1965; • Purchasing and drinking alcoholic beverages as a minor in June 1966; • Disorderly conduct in May 1967; • Unauthorized absence in June 1967; • False fire alarm in May 1968; and, • Breaking of restriction in June 1968. (c.) Please specifically discuss the appellant’s post-service diagnosis of PTSD, 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. 6. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain 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. KRISTY L. ZADORA 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.