Citation Nr: 21022081 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-22 367 DATE: April 14, 2021 REMANDED The issue of whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits is remanded. The claim of entitlement to service connection for a left ankle disability is remanded. The claim of entitlement to service connection for a left clavicle fracture is remanded. The claim of entitlement to service connection for a back disability, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. The claim of entitlement to service connection for a neck disability, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. The claim of entitlement to service connection for a left knee disability, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. The claim of entitlement to service connection for a right knee disability, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. The claim of entitlement to service connection for left upper extremity radiculopathy, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. The claim of entitlement to service connection for right upper extremity radiculopathy, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. The claim of entitlement to service connection for left lower extremity radiculopathy, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. The claim of entitlement to service connection for right lower extremity radiculopathy, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Navy from September 1985 to May 1989. He received a discharge under other than honorable conditions due to a pattern of misconduct. This matter is on appeal from a December 2013 Regional Office (RO) decision. In December 2020, the appellant testified before the undersigned in a virtual 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 Department of Veterans Affairs (VA) benefits is remanded. The appellant contends that he is entitled to VA benefits, to include compensation benefits, as the offenses underlying his discharge should not constitute willful and persistent misconduct under 38 C.F.R. § 3.12 (d) (4). 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 absence without leave (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 September 1985. His enlistment examination did not note preexisting disabilities relevant to the issues on appeal. In December 1986, the appellant was struck by a motor vehicle while riding his motorcycle. He was hospitalized with a primary diagnosis of Pronation Abduction Type I Fracture of the Left Ankle. A medical board in January 1987 noted that he was hit by the car moving at approximately 25 miles per hour, which knocked him off the motorcycle and onto his left side. The appellant also sustained a fracture of the left clavicle and left second toe in this accident. He wore a helmet at the time of the accident, and there was no loss of consciousness reported. The medical board recommended a six-month period of limited duty prior to returning to full duty. In May 1987, the appellant was reexamined and determined fit for full duty. In a subsequent June 1987 physical examination, the appellant denied relevant symptoms, to include history of head injury. The examination did not reveal present disabilities. In November 1987, the appellant received nonjudicial punishment (NJP) for drunken or reckless driving in October 1987. In July 1988, the appellant reportedly assaulted someone, leading to another NJP. A September 1988 report associated with his personnel file indicates that he was retained in the Naval service despite the previous NJPs, but corrective action was advised. The appellant faced NJP for a charge of drunk driving in or around October 1988. In October 1988, the appellant underwent an annual examination associated with his work around radar units. He reported being in good general health, and he denied other illnesses, injuries, and hospitalizations. He was found to be a healthy adult male. He concurrently reported engaging in hobbies including weight training and aerobics. In January 1989, the appellant received NJP for cocaine use following a positive urinalysis in December 1988. In February 1989, the appellant was AWOL, stole an Armed Forces identification card, and broke restriction. He faced a special court-martial for these charges in March 1989, and he was found guilty. In April 1989, he was considered for an administrative discharge due to a pattern of misconduct and commission of a serious offense. The subsequent drug and alcohol evaluation noted his history of driving under the influence and positive cocaine urinalysis. The appellant reported trying tetrahydrocannabinol (THC) as well. He estimated consuming approximately 12 beers per week. He was assessed to have a substance abuse issue, but the evaluator doubted chemical dependency. His separation examination, while partially illegible, appears normal overall with the exception of his history of left clavicle, ankle, and toe fractures. Initially, the appellant asserts that his December 1986 motorcycle accident caused traumatic brain injury (TBI) that impaired his ability to form the intent necessary to meet the requirements of “willful and persistent misconduct” per 38 C.F.R. § 3.12 (d) (4). Concurrently, he asserts that this accident may have caused him to meet the definition of insanity under applicable VA regulation. The Board regrets the additional delay, but remand is necessary prior to adjudication of this issue on the merits. Initially, service department records presently associated with the claims file appear to be limited. The RO requested only the facts and circumstances surrounding the appellant’s discharge, but the full records were not included in this search. Such a narrow scope omitted potentially favorable evidence, including performance evaluations, which the appellant has indicated would show that he excelled at work prior to the accident. Further, the file only possesses limited information about the NJPs underlying his discharge, and it remains unclear if there were associated incident reports or investigations. As such, full service department records must be sought on remand. Additionally, a medical opinion is necessary with regard to the appellant’s mental capabilities following the December 1986 motorcycle accident. As he is asserting serious impairment in his ability to conduct intentional actions, examination and a medical opinion from an appropriate clinician is necessary to determine the severity of any impairment following the accident. Furthermore, the appellant reported being in a post-service motor vehicle accident, as well as working a career in construction following discharge. Additional information should be obtained by the examiner on these issues as they may or may not impact his overall mental health and functioning. 2. The claim of entitlement to service connection for left ankle and clavicle disabilities is remanded. While the RO granted entitlement to service connection for treatment purposes only for the appellant’s left ankle and left clavicle disabilities, such does not constitute a full grant of benefits sought on remand. The appellant has consistently claimed entitlement to service connection for both treatment and compensation purposes throughout the appellate period. Despite the grant of health care benefits for these disabilities, the issue of compensation benefits remains on appeal and intertwined with the determination regarding the appellant’s character of discharge. 3. The claim of entitlement to service connection for back, neck, and bilateral knee disabilities, as well as bilateral upper and lower extremity radiculopathy, to include for treatment purposes under Title 38, Chapter 17, United States Code, is remanded. Similarly, the RO mischaracterized the appellant’s claims of entitlement to service connection for the remaining disabilities on appeal. The appellant has consistently appealed his entitlement to both compensation and health care benefits for the disabilities listed herein. The RO erroneously framed these claims as for treatment purposes only in the March 2018 Statement of the Case. Despite this, the appellant’s Substantive Appeal continued to list entitlement to service connection, not simply for treatment purposes, and testimony was taken on these issues in the hearing before the undersigned. As a result, the issues are more accurately categorized as reflected in the above issues section. Furthermore, remand is necessary on these issues as the prior VA examination reports provided inadequate rationales to support a lack of nexus with service. The August 2013 opinions are threadbare, providing no or only limited rationales with regard to each disability. Thus, remand is necessary to obtain more sufficient medical opinions prior to adjudication on the merits. The matters are REMANDED for the following action: 1. Attempt to obtain, through all indicated and appropriate sources, the appellant’s complete service treatment and personnel records, to include those from his hospitalization in December 1986. 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. Contact the appellant and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the appellant and the representative of record, and afford an opportunity to provide these outstanding records. 4. 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 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? • drunken or reckless driving in October 1987, • assault in July 1988, • driving under the influence in October 1988, • use of cocaine in December 1988, and, • theft of an Armed Forces identification card, AWOL, and breaking of restriction in February 1989. (c.) Due to the December 1986 motorcycle accident and resulting injuries, is it at least as likely as not that the appellant lacked the requisite capacity to form intent sufficient to categorize his in-service offenses as willful? (d.) Please discuss post-service incidents, including history of a motor vehicle accident, as well as a civilian career in construction, in any response. 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. 5. Following completion of the foregoing, schedule the appellant for VA examinations to assess the etiology of his bilateral knee disabilities, neck disability, back disability, and bilateral lower and upper extremity radiculopathy. A complete copy of the claims file must be provided to the examiner(s), including a copy of this remand. The examiner(s) should take a history from the appellant, and must consider lay reports of observable symptomatology. After a thorough review of the record, the examiner(s) should opine as to the following: (a.) Identify any and all present disabilities of the knees, back, neck, and bilateral lower and upper extremities. (b.) For each identified disability, is it at least as likely as not (i.e. a probability of 50 percent or more) that the identified disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Please specifically address the appellant’s in-service motorcycle accident. The examination report should specifically state that a review of the record was conducted. The examiner 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. JONATHAN B. KRAMER 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.