Citation Nr: 21028607 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-19 481A DATE: May 11, 2021 REMANDED The issue of whether the character of the appellant's spouse's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits, to include Dependency and Indemnity Compensation (DIC) benefits, is remanded. REASONS FOR REMAND The appellant's spouse (hereinafter, "M.B.") had active duty service with the United States Army from April 1968 to March 1971. He received a discharge under other than honorable conditions in lieu of a trial by court-martial. The discharge was subsequently upgraded to under honorable conditions pursuant to a Department of Defense discharge review program in June 1977, but the Army Discharge Review Board did not affirm his upgraded discharge. M.B. passed away in June 2013, and his surviving spouse, the appellant in the present matter, filed a claim for DIC benefits. This matter is on appeal from a December 2014 Regional Office (RO) decision. The Board denied entitlement to DIC based upon the character of M.B.'s discharge from service in October 2018. The Court of Appeals for Veterans Claims (Court) vacated this denial pursuant to a memorandum decision in April 2020. The matter has returned for readjudication. 1. The issue of whether the character of the appellant's spouse's discharge constitutes a bar to VA benefits, to include DIC benefits, is remanded. The appellant asserts that M.B. met the definition of "insanity" for VA purposes during the misconduct underlying his separation from service. Presently, a regulatory bar to benefits exists due to M.B.'s willful and persistent misconduct leading to his discharge. M.B. went absent without leave (AWOL) on multiple occasions totalling 97 days of lost time, leading to his discharge from service. If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the Veteran was insane. 38 U.S.C. § 5303 (b). 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 or her normal method of behavior; or who interferes with the peace of society; or who has departed (become antisocial) from the accepted standards of the community to which by birth and education he/she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he/she resides. 38 C.F.R. § 3.354 (a). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). Behavior which is generally attributable to a substance abuse disorder does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall within the scope of the term insanity, and, therefore, does not constitute insane behavior. Personality disorders, including antisocial personality disorder, do not satisfy the definition of insanity as contemplated at 38 C.F.R. § 3.354. VAOPGCPREC 20-97. In addition, mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). Rather, insane behavior is defined as a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, the person is rendered incapable of managing himself or his affairs, which is a concept akin to the level of incompetency generally supporting appointment of a guardian. VAOPGCPREC 20-97. Insanity must be shown to exist, due to disease, only at the time of the commission of the offense leading to discharge, not that insanity caused the misconduct. Beck, 13 Vet. App. at 539. In other words, there need not be a causal connection between the insanity due to disease and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993) and abrogated on other grounds by Gardner v. Shinseki, 22 Vet. App. 415 (2009); see also VAOPGCPREC 20-97. While in-service records regarding M.B.'s mental health are sparse, the appellant has provided lay statements reporting a change in his behavior following his deployment to Vietnam. Thus, remand is necessary in order to obtain a medical opinion as to whether M.B. met the VA definition of insanity around the time of the offenses leading to his discharge from service. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from a specialist to assess the M.B.'s mental state leading up to his discharge from service. The specialist 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 M.B. was insane, per the aforementioned VA regulation, at the time he committed three episodes of AWOL totalling 97 days of absence? (c.) Please specifically discuss the lay statements provided in March 2021 in any response. 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. 2. 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 and her representative an opportunity to respond, and return the case to the Board. B. MULLINS 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.