Citation Nr: 21028694 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-07 947 DATE: May 11, 2021 REMANDED The issue of whether the character of the appellant's discharge from service constitutes a bar to eligibility for Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Marine Corps from December 1984 to March 1987 and was discharged under other than honorable conditions in lieu of trial by court-martial. The instant matter is on appeal from a November 2017 decision. The Board remanded this issue in June 2020 for additional evidentiary development. 1. The issue of whether the character of the appellant's discharge from service constitutes a bar to eligibility for VA benefits is remanded. The Board sincerely regrets the additional delay, but remand is again necessary in order to ensure compliance with previous remand instructions. In June 2020, the Board requested that the Regional Office (RO) ensure that the appellant's service department records, to include service treatment and personnel records, were complete, and conduct a new search for those records if not. After a thorough review of the file, it is clear that these records remain incomplete. In a September 2020 deferred rating document following the Board's remand, the Decision Review Officer (DRO) determined that all service treatment and personnel records had been previously obtained. The DRO noted that service treatment records were received on July 27, 2019, "with copy of [service treatment records] also submitted by the [appellant] on" July 29, 2019. Personnel records were purportedly received on January 12, 2009, and October 9, 2014, with a copy received October 18, 2017. The only request for the appellant's records apparent from the claims file occurred in December 2008. In that request, the RO only searched for the facts and circumstances related to the appellant's discharge. Such a request, by its very parameters, excludes all other documentation not directly related to the offense that caused his discharge. The responsive records totaled seven pages. The appellant himself submitted duplicates of these same records as well. The July 27, 2019, service treatment records were faxed to the RO by the appellant. Even a cursory review reveals that they primarily deal with his in-service hospitalization, but not the remainder of his two years of service. The "copy" received two days later also appears to be an appellant-initiated submission to the VA Claims Intake Center. Personnel records received January 12, 2009, as noted above, are woefully incomplete, and the subsequent submissions are duplicative of the first. The appellant served for over two years before his discharge. Not presently associated with the claims file are critical personnel records, including information on prior nonjudicial punishments, concurrent civilian charges around the time of his desertion, the charge sheet following his short period of desertion, any of the documents pertaining to his desertion status, or performance evaluations that may address his behaviors around the time of his misconduct. Service treatment records submitted by the appellant document his in-service hospitalization following an overdose, but other routine service treatment records appear to be outstanding. Even preliminary documents such as his entrance and separation examinations are not of record. It is unclear if the RO ever sought service treatment records aside from the submissions from the appellant. Thus, it is clear that the RO did not seek the appellant's complete service department records, nor is the complete file associated with the claims file. Following the September 2020 deferred rating, no other search for records was completed. Accordingly, remand is necessary in order to ensure the appellant's complete records, not just seven pages of facts and circumstances, are sought and associated with the claims file. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Conduct a search, through all indicated and appropriate sources, for the appellant's complete service department records, to include both personnel records and service treatment records. All efforts to obtain these records should be documented. If any records cannot be obtained, 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. If records are received, request that the previous examiner from January 2021, if possible, provide an addendum opinion on the issue of insanity based upon these new records. (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? Desertion in January 1987, and Wrongful consumption of alcohol. (c.) Please specifically discuss the appellant's suicide attempt in October 1986, as well as any pertinent post-service medical records. The examination report should specifically state that a review of the record was conducted. The examiner 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. 3. 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 his 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.