Citation Nr: 21025994 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-03 463A DATE: April 29, 2021 REMANDED The issue of whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) compensation benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Marine Corps from August 2002 to January 2004. He received a discharge under other than honorable conditions due to a pattern of misconduct. This matter is on appeal from an August 2017 Regional Office (RO) decision. The Board previously remanded this issue in June 2020 in order to obtain a medical opinion regarding the appellant’s mental health during service. 1. The issue of whether the character of the appellant's discharge constitutes a bar to VA compensation benefits is remanded. The Board regrets the additional delay, but remand is again necessary prior to adjudication on the merits. Initially, the Board notes that the appellant has twice requested that the RO send him information regarding Veterans Service Organizations (VSO) so he may obtain representation. The first request occurred in June 2017, and the second was in conjunction with his January 2018 Notice of Disagreement. Although the appellant was provided information regarding representation in the SOC, such information should be again provided to him as he is presently incarcerated with limited electronic resources. Second, it is unclear if the appellant’s full service records have been sought and obtained prior to certifying the case to the Board. The Administrative Decisions from August and November 2017 only relay that they reviewed the personnel file and the “facts and circumstances” surrounding the appellant’s discharge as provided by the service department. The two Requests of Information seeking the appellant’s personnel records from the Defense Personnel Records Information Retrieval System (DPRIS) only reflect pending requests, not that any were completed. Additionally, the appellant’s discharge paperwork noted that a separation examination should have been conducted, but one is not presently associated with the claims file. Accordingly, remand is necessary in order to obtain a complete copy of the appellant’s service records. Finally, the Board finds that the RO did not make adequate attempts to schedule the appellant for a psychiatric examination by either a VA examiner or prison mental health provider. In the Board’s June 2020 remand, it instructed the RO to obtain an opinion with respect to the appellant’s mental health during service. The subsequent examination was then cancelled in September 2020 with the only listed reason as “restricted by contract” and “no access to prison”. It is unclear what steps the RO took in attempting to schedule an examination, or if they made any efforts to work with the prison in this process. The appellant was successfully examined in person in November 2019, during the present pandemic, so such an examination was within the capabilities of the correctional facility. The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement because these individuals are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The Board recognizes that VA does not have the authority to require a correctional institution to release a veteran so that VA can provide him the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711. Nevertheless, VA’s duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination worksheets; or, (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton, 8 Vet. App. at 191. In the present case, the RO has not afforded the Veteran an in-person examination, nor has the RO sufficiently documented that they have exhausted all reasonable steps to schedule such an examination. Accordingly, remand is necessary to obtain a VA examination to assess the appellant’s mental health underlying his discharge from service. The matters are REMANDED for the following action: 1. Provide the appellant with information regarding VSOs and representation. 2. Attempt to obtain, through all indicated and appropriate sources, the appellant’s complete service treatment and personnel 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. 3. Contact the appellant in order to identify any outstanding non-VA treatment records regarding the issue 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 afford an opportunity to provide these outstanding records. 4. Obtain a VA examination from an appropriate clinician to assess the appellant’s mental state leading up to his discharge from service. The examination may utilize telehealth or other electronic means of interviewing if social distancing or pandemic restrictions remain in effect. If an examination cannot be conducted, a medical opinion may be provided based upon a thorough review of the evidence of record, and it should respond to the subparts below. If an examination may be conducted, the clinician 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? • False official statement; • Willful damage of government property; and, • Wrongful appropriation. (c.) Please specifically discuss the appellant’s mental health diagnoses, including posttraumatic stress disorder. Please also address his reports of experiencing an unspecified in-service stressor, as relayed in correctional facility 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. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant an opportunity to respond, and return the case to the Board. S. Sorathia Acting 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.