Citation Nr: 21023966 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-20 346 DATE: April 21, 2021 REMANDED Whether the Veteran’s discharge from military service from August 14, 2007, to March 15, 2012, is dishonorable for VA purposes and is a bar to gratuitous Department for Veterans Affairs compensation benefits is remanded. Entitlement to service connection for service connection for posttraumatic stress disorder (PTSD) for compensation purposes is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for an adjustment disorder is remanded. Entitlement to service connection for severe depression is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) based upon service-connected disabilities is remanded. Entitlement to service connection for psychosis pursuant to 38 U.S.C. § 1702 is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Air Force from October 2006 to December 2006. He was discharged under honorable conditions. He had additional active duty service with the United States Marine Corps from August 2007 to March 2012 and was discharged under other than honorable conditions; an October 2013 Administrative Decision determined that the Veteran’s service during this time was dishonorable for VA purposes. The Veteran is a Gulf War Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2016 and September 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded the issues on appeal to the RO for further development. Specifically, the Board directed the RO to obtain a decision by the Department of the Navy Board of Correction of Naval Records. This decision has been obtained and associated with the claims file. In August 2019, the Board also granted service connection for treatment purposes under the provisions of 38 U.S.C. Chapter 17, for an acquired psychiatric disability, to include anxiety. In an October 2016 rating decision, the RO determined that the Veteran was entitled to service connection for treatment purposes under 38 U.S.C. Chapter 17 only for PTSD and a left wrist condition; however, the RO denied service connection for compensation purposes by finding that the character of the Veteran’s discharge from service for the period from August 14, 2007, to March 15, 2012 was a bar to eligibility for VA benefits. In the same decision, the RO notified the Veteran of his appellate rights and provided him with the Notice of Disagreement (NOD) form to use to initiate an appeal within one year of the administrative decision. However, the Veteran did not submit a timely NOD, and, therefore, the RO’s October 2016 decision is final. 38 C.F.R. § 20.1103. Nevertheless, pursuant to 38 C.F.R. § 3.156(c), where at any time after VA issues a decision on an original claim, VA receives relevant service records that existed and had not been associated with the claims file when it first decided the claim, VA will reconsider the claim on its merits. 38 C.F.R. § 3.156(c)(1). Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156(c)(1). In essence, the receipt of relevant service records unavailable at the time of the last final rating decision serves to vitiate the finality of that decision. See 38 C.F.R. § 3.156(c). See, also, 38 C.F.R. § 3.156(c) (“Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs.”). In the instant case, partial copies of the Veteran’s service personnel records were obtained and associated with the claims file in October 2019 and February 2020. The Veteran’s complete military personnel file was not previously of record. Therefore, the Board finds that the service personnel records obtained in October 2019 and February 2020 constitute “relevant official service records that existed and had not been associated with the claims file when it first decided the claim,” as they provide a more complete picture of the Veteran’s service which is pertinent to the underlying service connection claims. See 38 C.F.R. § 3.156(c)(1). Therefore, as the RO obtained the Veteran’s SPRs in October 2019 and February 2020; under 38 C.F.R. § 3.156(c)(1), his entitlement to service connection for PTSD and a left wrist condition is being reconsidered without regard to the previous final denial. In November 2020, the Board remanded the appeal to the RO for further development. Specifically, the Board directed the RO to schedule the Veteran for a VA examination to obtain an opinion on the issue of insanity under 38 C.F.R. § 3.354. 1. Whether the Veteran’s discharge from military service from August 14, 2007, to March 15, 2012, is dishonorable for VA purposes and is a bar to gratuitous VA compensation benefits is remanded. 2. Entitlement to service connection for PTSD for compensation purposes is remanded. 3. Entitlement to service connection for a left wrist disability for compensation purposes is remanded. 4. Entitlement to service connection for an adjustment disorder is remanded. 5. Entitlement to service connection for severe depression is remanded. 6. Entitlement to a total disability rating due to individual unemployability (TDIU) based upon service-connected disabilities is remanded. 7. Entitlement to service connection for psychosis pursuant to 38 U.S.C. § 1702 is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2020, the Board remanded the appeal to the RO to obtain a medical opinion on the issue of whether the Veteran was “insane” at the time of the misconduct. Specifically, the Board noted The Veteran has not specifically claimed to be insane at the time that he committed his criminal offenses. Additionally, we emphasize that the definition of insanity set forth above certainly encompasses greater impairment than is indicated by a simple diagnosis of a mental health disorder. However, the Veteran’s service treatment records indicate diagnoses of posttraumatic stress disorder (PTSD) and adjustment disorder concurrent with his period of misconduct. Current treatment records show that he has been diagnosed with (PTSD), obsessive compulsive disorder, anxiety disorder, and bipolar disorder. In his NBCNR review, the NBCNR obtained a medical opinion on the Veteran’s mental health as it related to his in-service misconduct. The medical professional opined that his PTSD pre-existed service and did not contribute to his misconduct. However, the examiner did not address any of the Veteran’s other mental health diagnoses, nor did he specifically opine on the issue of insanity under 38 C.F.R. § 3.354(a). Accordingly, given the evidence of record reflecting that the Veteran may have had psychiatric impairment in service, the Board finds that a VA examination and opinion is warranted on the issue of the Veteran’s mental state at the time of the misconduct that led to his March 2012 discharge under other than honorable conditions. The Board directed the RO to Afford the Veteran with a VA examination and obtain a medical opinion by an appropriate clinician, as to whether the Veteran was insane under VA regulations at the time of the misconduct that led to his March 2012 discharge under other than honorable conditions. After examination of the Veteran and review of his claims file, the examiner should respond to the following: (a) Was the behavior that led to the Veteran’s discharge in March2012 due to psychiatric disability? (b) Was the Veteran insane at the time he committed the criminal acts, in violation of the Uniform Code of Military Justice (UCMJ) that led to his March 2012 discharge under other than honorable conditions? In providing an answer to these questions, the examiner is advised that (for the purposes of this matter) an insane person is one who, due to disease, exhibits 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. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. In a February 2021 VA examination, the examiner found that the Veteran was not insane at the time of his misconduct. The examiner opined that the Veteran knew right from wrong and therefore was not insane. The examiner applied the American Psychiatric Association definition of “insanity,” and opined that To be “insane” implies that Veteran cannot distinguish between fantasy and reality, is impulsive and has poor insight into his illness. However, Veteran sought MH treatment while in service for “anger, irritability and relationship and work-related stressors.” The simple fact that he sought out services is indicative enough to warrant that Veteran had insight into his MH status. Per APA, “Insanity: in law, a condition of the mind that renders a person incapable of being responsible for his or her criminal acts. Defendants who are found to be not guilty by reason of insanity therefore lack criminal responsibility for their conduct. Whether a person is insane, in this legal sense, is determined by judges and juries, not psychologists or psychiatrists. Numerous legal standards for determining criminal responsibility, the central issue in an insanity defense, have been used at various times in many jurisdictions.” (https://dictionary.apa.org/insanity). Therefore, his discharge was more likely due to behavioral problems and impairments and not due to psychiatric disability. An individual may manifest impairment, restrictions, and limitations and yet not be prevented from performing the duties of his occupation (which would mean a disability). For an individual to manifest disability as a result of impairment, the identified impairment would need to be considered occupationally relevant. For example, individuals with functionally impairing levels of social anxiety disorder may be limited in their capacity to give presentations, but if their occupation does not require that they give presentations, such impairment and limitations would not preclude them from performing the duties of the job. However, the examiner did not provide an opine on insanity as defined in Title 38 C.F.R. § 3.354, as directed in the November 2020 Remand. Title 38 C.F.R. § 3.354, provides the definition of insanity as: [O]ne 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. 38 C.F.R. § 3.354(a). The Board notes that the February 2021 VA examiner did not apply this definition to her finding that the Veteran was not insane at the time of his misconduct. Therefore, the Board finds that this examination is inadequate for adjudication purposes. As such, the Veteran’s claim will be remanded to obtain an addendum opinion or to obtain a new VA medical examination to determine whether he was insane at the time of the conduct that led to his discharge using the definition of 38 C.F.R. § 3.354(a). Additionally, as noted in the November 2020 Board Remand, the Veteran’s character of discharge for military service from August 14, 2007, to March 15, 2012, is dishonorable for VA purposes and, as such, he is not currently entitled to compensation benefits under the laws administered by VA. See Administrative Decision, dated October 2013. As such, the Veteran’s claim concerning whether his character of discharge from the period of service extending from August 14, 2007, to March 15, 2012, is dishonorable for VA purposes must be resolved prior to further review of the other issues on appeal. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to include updated VA and non-VA treatment records. 2. Thereafter return the claims file to the February 2021 VA examiner in order to obtain an addendum medical opinion addressing whether the Veteran was insane under VA regulations at the time of the misconduct led to his March 2012 discharge under other than honorable conditions. If the February 2021 VA examiner is not available, schedule the Veteran, if necessary, with a VA medical examination to determine whether he was insane at the time of the conduct that led to his discharge. The examiner is asked to provide findings as to whether the Veteran was insane, under 38 C.F.R. § 3.354(a), at the time of the misconduct which led to his March 2012 discharge. The examiner informed that for VA purposes “[a]n insane person 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, (1) a more or less prolonged deviation from her normal method of behavior; (2) interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which she resides. 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 examiner should respond to the following: (a) Was the behavior that led to the Veteran’s discharge in March 2012 due to psychiatric disability? (b) Was the Veteran insane, under 38 C.F.R. § 3.354(a), at the time he committed the criminal acts, in violation of the Uniform Code of Military Justice (UCMJ) that led to his March 2012 discharge under other than honorable conditions? Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. (continued on the next page) 3. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If any of the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.