Citation Nr: 21029862 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-28 292 DATE: May 17, 2021 REMANDED The issue of whether the character of the appellant's service is a bar to VA benefits is remanded. REASONS FOR REMAND The appellant served on active duty from February 1996 to August 1997. The appellant's DD Form 214 shows he was separated under other than honorable conditions for a pattern of misconduct. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. The issue of whether the character of the appellant's service is a bar to VA benefits is remanded. A remand is warranted to obtain an opinion as to whether the appellant was insane by VA's definition at the time he committed the offenses that led to his discharge and to attempt to obtain records relating to the offenses. Under VA regulation, 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, (1) a more or less prolonged deviation from his normal method of behavior; or (2) who 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 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 phrase "due to disease" applies to all three circumstances provided in § 3.354(a). Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (citing Zang v. Brown, 8 Vet. App. 246, 253 (1995)). The appellant asserts that he had a psychiatric disorder and a traumatic brain injury that should be taken into account in the determination of whether the character of his service is a bar to VA benefits. The record shows that in May 1996, the appellant received a nonjudicial punishment (NJP) for wrongfully consuming alcohol under the age of 21. Service treatment records dated October 1996 show a diagnosis of alcohol abuse. The clinician recommenced he attend Level II alcohol treatment. In February 1997, the appellant received an NJP for unauthorized absence (UA) and disobeying a lawful order. No service personnel records are available to explain the circumstances. However, service treatment records dated March 6, 1997, shows the appellant reported he went UA to get out of the Level II treatment. From March 6, 1997 to March 11, 1997, the appellant was hospitalized at the Naval Medical Center in Portsmouth for suicidal ideation. A record of assignment document shows the appellant was assigned to the Naval Alcohol Rehabilitation Center at the Norfolk Naval Air Station from April 28, 1997, to May 4, 1997. A May 27, 1997, service record shows the appellant received an NJP for unauthorized absence, failure to obey a lawful order, and obtaining services under false pretenses. Service personnel records do not explain the circumstances. A May 28, 1997 service treatment record shows the appellant hit his head on a light while running through the ship. He did not lose consciousness. In July 1997, administrative separation processing took place. Because the appellant was shown to have had suicidal ideation around the time of some of his NJP's, a medical opinion is warranted to determine whether he was insane for VA purposes at the time of the commission of his offenses. VA regulations state that no compensation shall be paid if a disability is the result of alcohol abuse. 38 C.F.R. § 3.301. For the purpose of this regulation, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301 (d). See also 38 U.S.C. § 105; 38 C.F.R. § 3.1 (m). As such, whether alcohol use can be an exception to the bars to VA benefits is not for consideration. The matters are REMANDED for the following action: 1. Afford the appellant a VA examination and obtain a medical opinion by an appropriate clinician, as to whether the appellant was insane as defined by VA regulation at the time of the misconduct that led to his discharge. After examination of the appellant and review of the claims file, the examiner should respond to the following: (a) Did the appellant, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his periods of misconduct during service? (b) Did the appellant, due to disease, interfere with the peace of society concurrent with his periods of misconduct during service? (c) Did the appellant, due to disease, depart (became antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided concurrent with his periods of misconduct during service? VA definition of Insanity: 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. A 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. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.