Citation Nr: 21022799 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-56 299 DATE: April 19, 2021 REMANDED The issue of whether the character of the Veteran’s discharge for the period of service from January 21, 2004 to May 17, 2006 is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. Entitlement to service connection for an acquired psychological disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. The issue of whether new and material evidence is required to reopen the claim for entitlement to service connection for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Navy from January 21, 1999 to January 20, 2004. The Veteran’s additional active duty service in the United States Navy from January 21, 2004 to May 17, 2006 was determined to be dishonorable based on his discharge under other than honorable conditions. However, as discussed further below, the issue of whether the character of the Veteran’s discharge for the period of service from January 21, 2004 to May 17, 2006 is a bar to the receipt of VA compensation benefits is being remanded in the decision herein. A Board hearing was held before the undersigned Veterans Law Judge in May 2019, and a transcript of the hearing is of record. Historically, the Board denied the Veteran’s claim for service connection for an acquired psychological disorder (to include PTSD and major depressive disorder) based on a finding that the period of service on which the Veteran’s claim is based constitutes a bar to VA compensation benefits. See September 2019 Board decision. Additionally, the Board denied the Veteran’s application to reopen his claim for service connection for a right shoulder condition based on a finding that new and material evidence was not received with respect to the claimed right shoulder condition having been incurred during the Veteran’s period of honorable service. In November 2020, the United States Court of Appeals for Veterans Claims (Veterans Court) granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s September 2019 decision to the extent that it denied the Veteran’s claim for service connection for an acquired psychological disorder and denied the application to reopen the claim for service connection for a right shoulder condition. The parties to the JMPR agreed that the Board failed to provide an adequate statement of reasons or bases with respect to the “veteran status” element of the above claims. 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 finds remand of the issues on appeal is necessary for the reasons discussed further below. The issue as to whether the character of the Veteran’s discharge for the period of service from January 21, 2004 to May 17, 2006 is a bar to the receipt of VA compensation benefits is remanded. In order to qualify for VA compensation benefits, a claimant must first establish “veteran” status. 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). Here, the Veteran has not disputed that his claim for entitlement to service connection for an acquired psychological disorder and service connection for a right shoulder condition are based on his period of service from January 21, 2004 to May 17, 2006, which was determined to be dishonorable in a November 2010 VA decision. See also November 2010 VA notification letter (advising the Veteran he is ineligible for any VA benefits based on this period of military service). The Veteran did not appeal the November 2010 VA determination that his period of service from January 21, 2004 to May 17, 2006 is dishonorable, barring the receipt of VA benefits based on this period of service. However, the Board notes that relevant service records were associated with the claims file in December 2014, which pertain to the Veteran’s discharge from service under other than honorable conditions. In contrast to the general rule, which only permits claims to be reopened on the submission of new and material evidence, 38 C.F.R. § 3.156(c) requires VA to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file, whether or not they are “new and material.” See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (2014). With respect to the November 2020 JMPR direction to address the “veteran status” element of the Veteran’s claim for service connection for an acquired psychological disorder and application to reopen his claim for service connection for a right shoulder condition, and in light of the newly associated relevant service records, the Board will reconsider the issue as to whether the Veteran’s discharge under other than honorable conditions constitutes a bar to the receipt of VA compensation benefits based on the period of service from January 21, 2004 to May 17, 2006. In this case, the Board finds the issue of insanity has been raised by the record. 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(s) causing such discharge or release. As noted in the November 2020 JMPR, the Veteran indicated that he would not have received a dishonorable discharge were it not for the psychological issues that began when his father attempted suicide in February of 2006. See also May 2019 Board hearing transcript. 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 observes the Veteran’s service treatment records are silent for a diagnosed psychological disorder. However, it appears the Veteran sought counseling through the Navy Fleet & Family Support Center (FFSC) in May 2006, shortly before his separation from service under other than honorable conditions. See May 2006 Consultation Request Sheet (received by VA in May 2016). Although FFSC referred the Veteran for a psychological evaluation in May 2006, there is no indication in the evidence of record, and the Veteran has not asserted, that such was ever conducted. In a July 2014 VA psychiatry note, the provider indicated the Veteran experienced a major depressive episode in 2005 with the loss of his grandfather, which was significantly exacerbated after the Veteran received orders to go overseas and his father’s attempted suicide in February 2006. Additionally, in May 2016, the Veteran submitted character witness statements that appear to have been provided on behalf of the Veteran during his administrative separation proceedings in service. A May 2006 statement from the Veteran’s squad leader indicated the Veteran “wasn’t quite himself” at the time he committed the offenses resulting in his discharge under other than honorable conditions. A May 2006 statement from the Veteran’s assistant platoon commander indicated the Veteran’s misconduct in service involved behavior that was very uncharacteristic of the Veteran. A May 2006 statement from the Veteran’s mother indicated that at the time of his misconduct, the Veteran was experiencing an overwhelming amount of grief due to the loss of his grandfather and his father’s attempted suicide, which contributed to poor judgment in the Veteran’s actions. 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. Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009). Given VA’s duty to assist, the Veteran’s contention that he would not have received a dishonorable discharge were it not for psychological issues in service, lay evidence indicating the misconduct resulting in the Veteran’s discharge under other than honorable conditions involved uncharacteristic behavior, and post-service treatment records suggesting the Veteran had a psychological disorder concurrent with his misconduct in service, the Board finds remand is necessary to obtain a medical opinion as to whether the Veteran was “insane” (as defined by VA regulations) at the time of the misconduct that led to his discharge. The issue of service connection for an acquired psychological disorder and the issue of whether new and material evidence is required to reopen the claim for service connection for a right shoulder condition are remanded. As noted above, the Veteran’s service connection claims for an acquired psychological disorder and a right shoulder condition are based on his period of service from January 21, 2004 to May 17, 2006. In this case, a decision on whether the Veteran’s discharge under other than honorable conditions is a bar to the receipt of VA compensation benefits for claims based on his period of service from January 21, 2004 to May 17, 2006, may significantly impact the issue of entitlement to service connection for an acquired psychological disorder and the issue as to whether new and material evidence is required to reopen the Veteran’s claim for entitlement to service connection for a right shoulder condition. As such, the Veteran’s service connection claims are inextricably intertwined with the remanded issue (the veteran status element) of whether the character of the Veteran’s discharge for the period of service from January 21, 2004 to May 17, 2006 is a bar to the receipt of VA compensation benefits. Thus, a decision on the issue of service connection for an acquired psychological disorder and the issue of whether new and material evidence is required to reopen the claim for service connection for a right shoulder condition must be deferred pending completion of the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain a medical opinion from a psychologist or psychiatrist as to whether the Veteran had a mental disorder at the time of the misconduct that resulted in his separation under other than honorable conditions. Following a review of the claims file, to include the decision herein, the psychologist or psychiatrist should respond to the following: (a.) Did the Veteran, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his misconduct in service? (b.) Did the Veteran, due to disease, interfere with the peace of society concurrent with his misconduct in service? (c.) Did the Veteran, 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. 2. Readjudicate the issues on appeal, to include the issues of (1) service connection for a psychological disorder, and (2) whether new and material evidence is required to reopen the claim for service connection for a right shoulder disability. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case and inform the Veteran of his appeal options. VICTORIA MOSHIASHWILI 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.