Citation Nr: 21024996 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-14 106A DATE: April 27, 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. REASONS FOR REMAND The appellant had active duty service with the United States Navy from August 1999 to June 2003. He received a discharge under other than honorable conditions due to misconduct. This matter is on appeal from a December 2015 decision. In February 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. The issue of whether the character of the appellant's discharge constitutes a bar to VA benefits is remanded. The claim must be remanded for further development. Initially, the Board notes that the appellant’s complete service department records are not associated with the claims file. Inpatient alcohol treatment records are limited given the appellant’s extensive treatment, and the claims file does not include information about his waiver for a pre-service conviction for driving under the influence of alcohol. Further, the appellant’s separation examination does not appear to be complete. Thus, remand is necessary in order to ensure the service department records are complete prior to adjudication. Next, the appellant has submitted a private medical opinion, as well as a statement from his treating clinician at VA, discussing his mental state during service. The private opinion provider states that they did not have complete service treatment records, and therefore the findings are based upon an incomplete file, as also discussed above. The opinion of the treating clinician concludes that the appellant would not have been discharged if his condition had been appropriately diagnosed and managed during service. These opinions are insufficient to support a grant at this time. However, the opinions do indicate the need for a VA examination to more thoroughly address the appellant’s mental health during service based upon a complete evidentiary record. Finally, the appellant has reported that he applied for an upgrade to the character of his discharge with the Naval Discharge Review Board. These records should also be sought on remand, and the appellant should be afforded an opportunity to provide any subsequent findings. 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 his pre-service waiver and inpatient alcohol treatment 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. 2. 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. 3. 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. 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. If the requested specialist(s) is/are not available in the local or near-regional area, the Agency of Original Jurisdiction (AOJ) should use a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. Copies of all pertinent records must be made available to the examiner for review. 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.) Due to the appellant’s asserted misdiagnosed mental health condition, 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? (c.) 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 offenses underlying his discharge from service? (d.) Specifically discuss the February 2019 private opinion and the February 2021 opinion from the appellant’s treating clinician, 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. M.E. Larkin 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.