Citation Nr: 21022518 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-31 472 DATE: April 16, 2021 REMANDED The issue as to whether the character of the appellant’s discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Navy from October 1985 to September 1986. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision by a VA Regional Office (RO). In October 2020, the appellant testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronics claims file. Historically, the appellant filed a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in June 2015. See June 2015 VA Form 21-526EZ. In a December 2015 decision, the RO notified the appellant that he is not eligible for VA compensation benefits because his discharge from service is considered to have been issued under dishonorable conditions based on willful and persistent misconduct. See 38 C.F.R. § 3.12(d)(4). Within one year of the December 2015 decision, new and material evidence was associated with the claims file that relates to the circumstances and character of the appellant’s discharge from service, as well as his claim for entitlement to service connection for PTSD. See December 2016 VA PTSD examination; see also 38 C.F.R. § 3.156(b). In a January 2017 rating decision, entitlement to service connection for PTSD was granted for treatment purposes only under 38 U.S.C. Chapter 17. The appellant timely perfected his appeal with respect to the issue as to whether the characterization of his discharge from service constitutes a bar to VA compensation benefits for PTSD, which is service-connected for treatment purposes only. See D’Amico v. West, 209 F.3d 1322, 1326 (2000) (“[a] claim for veteran’s disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability”). The Board regrets the additional delay, but for the reasons discussed further below finds remand is necessary for additional development before an informed decision can be made. During the October 2020 Board hearing, the appellant indicated it was very possible that he was experiencing temporary insanity due to sleep deprivation and harassment in service. Under 38 C.F.R. § 3.12(b), the bar to payment of VA benefits based on a discharge issued under dishonorable conditions is lifted if it is found that the person was insane at the time of committing the offense causing such discharge or release. 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 Board notes that a precedential VA General Counsel opinion has held that “because a personality disorder is not a disease for VA compensation purposes, behavior which is attributable to a personality disorder does not satisfy the definition of insanity in section 3.354(a).” See VAOPGCPREC 20-97. In reviewing service records, the appellant entered active duty in October 1985 and appears to have completed his initial training without incident or any disciplinary infractions. The appellant was assigned for duty aboard the U.S.S. San Jose in March 1986. Within three months of his assignment, the appellant received nonjudicial punishment (NJP) for offenses involving disrespect toward a superior commissioned officer, including yelling at, and contemptuously turning from, the officer; willfully disobeying a lawful command from a superior commissioned officer; willfully disobeying lawful orders; treating a petty officer with contempt by saying obscene crudities of a personal nature; and disorderly conduct of a nature to bring discredit upon the Armed Forces. See June 1986 Commanding Officer’s NJP; see also August 1986 Message to Commander, Naval Military Personnel Command. Prior to receiving NJP in June 1986 for the offenses described above, the appellant was referred for a psychiatric evaluation on June 8, 1986. See August 1986 Message to Commander, Naval Military Personnel Command (reporting the results of the psychiatric evaluation). The assessment by the Head, Department of Psychiatry, indicated the appellant was diagnosed with adjustment disorder and avoidant personality disorder. The provider indicated the appellant reported he could not handle Navy life, and wanted out via any mechanism despite the consequences. The provider reported the appellant’s lack of motivation for service was likely to have an adverse effect on the appellant’s performance of duties and behavior. The provider observed the appellant was alert, cooperative, demonstrated inappropriate smiling when angry, related in a childlike manner, and demonstrated immature judgment. The provider reported the appellant did not demonstrate psychosis, and cognitive without difficulty. The provider recommended administrative discharge due to a personality disorder if the appellant persisted on being a burden to the command. On June 11, 1986, the Commanding Officer, U.S.S. San Jose, awarded confinement on bread and water (Naval Brig Yokosuka, Japan) as a result of NJP. Two days following the NJP, the Commanding Officer ordered that the three days correctional custody awarded as the result of the June 11, 1986 NJP be vacated. The evidence of record does not contain any indication that any portion of the correctional custody was executed. The appellant received NJP again in July 1986 for offenses involving disrespect in language to a petty officer; negligently failing to stay awake to perform duties assigned; and failing to go at the time prescribed to his appointed place of duty. See August 1986 Message to Commander, Naval Military Personnel Command. The appellant was awarded 30 days restriction, forfeiture of one half pay for one month, reduction in grade (suspended for three months), and extra duties for 30 days. In a July 1986 letter, based on the offenses described above, the appellant was notified that he was being considered for an administrative separation by reason of misconduct due to a pattern of misconduct. The appellant received NJP again in August 1986 for offenses committed that same month involving unauthorized absence, disobeying lawful orders, disrespect, and assault. The appellant was awarded confinement on bread and water (Naval Brig, Guam). Two days following the NJP, the Commanding Officer, U.S.S. San Jose, ordered that the three days correctional custody awarded as the result of the August 19, 1986 NJP be vacated. The evidence of record does not contain any indication that any portion of the correctional custody was executed. An August 1986 message from the Commander, Naval Personnel Command, authorized the appellant’s discharge for misconduct with a characterization of service under other than honorable conditions. The appellant was discharged in September 1986 for a pattern of misconduct based on frequent involvement of a discreditable nature with civil or military authorities, with a characterization of service under other than honorable conditions. In connection with his service connection claim for PTSD, the appellant submitted a private mental health evaluation. See December 2014 N.C.S. Evaluation. The appellant indicated that he was twice placed in correctional custody on bread and water as the result of NJP in service, and that he was the victim of assault and attempted rape during the second period served in correctional custody. In a February 2016 letter from the Board for Correction of Naval Records (BCNR), the appellant’s application to upgrade his discharge was denied. However, referencing N.C.S. treatment record(s), the BCNR determined the appellant had a diagnosis of PTSD that existed at the time of his discharge. See also December 2014 N.C.S. Evaluation. The appellant was afforded a VA PTSD examination in December 2016. The examiner indicated the appellant has a current diagnosis of PTSD related to trauma from being imprisoned in Guam. The examiner indicated the appellant’s report of symptoms in service were more parsimoniously and accurately explained by PTSD resulting from his reaction to a traumatic experience. However, the Board notes that confinement on bread and water at the Naval Brig, Guam was awarded (with the assignment to a correctional custody unit vacated without any indication that any portion was executed) as a result of the August 1986 NJP, after the offenses on which his separation for a pattern of misconduct was based. Following a review of the claims file, psychological testing, and clinical interview of the appellant, his girlfriend, and father and stepmother, the examiner opined the appellant was misdiagnosed in service with adjustment/avoidant personality disorder (diagnosed in June 1986) and that he suffered from PTSD and major depressive disorder at the time of his discharge or shortly thereafter. In considering the evidence discussed above, the Board finds remand is necessary for additional development. As an initial matter, it is not clear from service records whether any portion of the three days correctional custody awarded at NJP in June and August 1986, respectively, were actually executed given the order to vacate such punishment two days following each respective NJP. Insofar as the appellant contends that he may have been “insane,” as defined by VA regulations, due to traumatic event(s) resulting from imprisonment in service, an attempt should be made to verify whether the appellant served in a correctional custody unit as a result of NJP in June and/or August 1986. Additionally, with respect to the December 2016 VA medical opinion that the appellant’s diagnosis in service (adjustment/avoidant personality disorder) was a misdiagnosis, the examiner did not appear to consider or discuss that the adjustment/avoidant personality disorder diagnosis was made concurrent with the appellant’s initial disciplinary infractions and prior to the alleged traumatic experience(s) that formed the basis of the PTSD diagnosis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). In this regard, the appellant has consistently asserted the alleged assault and attempted rape occurred in correctional custody in Naval Brig, Guam. As discussed above, with respect to the three days correctional custody in Naval Brig, Guam, such was awarded as a result of the August 1986 NJP (and vacated two days following the date of NJP), which is after the offenses that formed the basis of the appellant’s separation for misconduct. However, given VA’s duty to assist and the appellant’s contention that he may have experienced temporary insanity due to allegations of sleep deprivation and harassment in service, the Board finds remand is necessary to obtain a new medical opinion as to whether the appellant was “insane,” as defined by VA regulations, at the time of the misconduct that led to his discharge. 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.). The matters are REMANDED for the following action: 1. Contact the appropriate record repositories to obtain any documents related to the appellant’s reported assignment to three days correctional custody awarded as a result of the appellant’s NJP in June 1986 and August 1986, to include the Federal Records Center, the United States Navy Brig where incarcerated (Naval Brig Yokosuka, Japan and Naval Brig Guam), and/or the Navy Director, Office of Corrections and Programs. Document all requests for information and responses in the claims file. 2. Obtain a medical opinion from a psychologist or psychiatrist as to whether the appellant had a mental disorder, other than a personality disorder, at the time of the misconduct that resulted in his separation under other than honorable conditions. As discussed in the decision herein, behavior which is attributable to a personality disorder does not satisfy the definition of insanity. Following a review of the claims file, to include the decision herein, the psychologist or psychiatrist should respond to the following: 3. Did the appellant, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his misconduct in service? 4. Did the appellant, due to disease, interfere with the peace of society concurrent with his misconduct in service? 5. Did the appellant, due to disease, depart (become antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided concurrent with his misconduct in service? The need for an examination is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. Nathaniel J. Doan 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.