Citation Nr: 21032208 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-12 224 DATE: May 26, 2021 ORDER The character of the Veteran's discharge from service is not a statutory or regulatory bar to the receipt of Veterans Affairs (VA) benefits. Service connection for an acquired psychiatric disorder, to include unspecified depressive disorder and major depressive disorder, is granted. Service connection for a right shoulder disability is granted. FINDINGS OF FACT 1. The Veteran was insane, as defined by VA regulation, at the times of the offenses that resulted in his other than honorable discharge. 2. The competent and probative evidence tends to show the Veteran's unspecified depressive disorder and major depressive disorder began during service and have continued since that time. 3. The competent and probative evidence tends to show that the Veteran's right shoulder osteoarthritis began during service and has continued since that time. CONCLUSIONS OF LAW 1. For the second period of the Veteran's active duty from May 24, 2007 to March 8, 2012, the criteria for status as a veteran and basic entitlement to VA benefits are met. 38 U.S.C. §§ 101, 5107, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.354. 2. The criteria for service connection for an acquired psychiatric disorder, to include unspecified depressive disorder and major depressive disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.304, 4.125(a). 3. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b) 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from August 1999 to March 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference Board hearing in October 2018. A transcript is of record. Subsequently, the Board remanded these matters in March 2019 and again in December 2020 for additional development, to include examinations. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA provided the Veteran with examinations. In May 2021, VA issued an administrative decision finding that the Veteran's discharge for the period of active service from May 24, 2007 to March 8, 2012, was under other than honorable conditions, and is considered a bar to the payment of VA benefits, in accordance with 38 C.F.R. § 3.12. The Veteran's attorney raised the issue of insanity in November 2020. The RO found the Veteran was sane in a May 2021 rating decision. The Board finds this issue to be part of the appeal currently before the Board as it has been at part of the underlying RO determinations during the period on appeal. As such, there are no due process concerns and the Board will address it next. 1. Character of Discharge As reported above, the Veteran's second half of service was under other than honorable conditions. Insanity has been raised by the record as submitted by his attorney in November 2020. See Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (stating that although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis). In order to qualify for VA compensation benefits, a claimant, or the party upon whose service the claimant predicates the claim must be a "veteran." A veteran is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Thus, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). Initially, the AOJ in February 2013, found that the character of the Veteran's discharge is a bar to the receipt of VA benefits based on willful and persistent misconduct. He was found sane in a May 2021 rating decision and Administrative decision. 38 C.F.R. § 3.12(d)(4). Under 38 C.F.R. § 3.1(n), the term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. A discharge from service based on willful and persistent misconduct is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense(s) causing such discharge. 38 C.F.R. § 3.12 (b). Under 38 C.F.R. § 3.354 (a), insanity is defined as "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." The U.S. Court of Appeals for Veterans claims has noted that the regulation, as written in 38 C.F.R. § 3.354 using the term "or", "appeared to provide for three independent instances of insanity." See Zang v. Brown, 8 Vet. App. 246, 252-53 (1995). The term "insanity" refers to a condition involving conduct that deviates severely from the social norm or interferes grossly with the capacity to meet the ordinary demands of life. See VAOPGCPREC 20-97. The determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case. An October 2019 examiner stated that the Veteran had a diagnosis of unspecified depressive disorder that was related to issues that occurred around 2008 or 2009. A December 2020 examiner noted that the Veteran was seen by mental health in 2009 for issues that were in part related to his drinking. An addendum provided in March 2021 reported that the Veteran's unspecified depressive disorder was at least as likely as not related to mental health issues he experienced during military service, but less likely than not related to eminent danger. In October 2018, a VA psychiatrist reported that the Veteran had major depressive disorder and that he self-medicated with alcohol during active duty. He served in a combat zone, and his depression increased. An October 2020 private psychologist addressed the Veteran's sanity during service. She stated that the Veteran had a pattern of behavior that deviated markedly from his usual behavior after he had deployed to Iraq and Afghanistan. She noted that he was deployed to Iraq and Afghanistan, and afterwards, experienced symptoms of anxiety and mood changes due to stressors he experienced. He began to drink heavily to self-medicate. She noted that he had symptoms that were consistent with Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnoses of Major Depressive Disorder, Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Alcohol Use Disorder. She reported that in March 2013 he was admitted to in-patient psychiatric unit for psychosis, which typically represents a loss of contact with reality and may be characterized by auditory and visual hallucinations. She concluded by reporting that his pre-military history, and first period of service, were not characterized by violence or aggression which showed that he had a change in behavior and psychological health after his Iraq and Afghanistan deployments. The Board finds this opinion on the Veteran's sanity to highly probative. The psychologist explains the changes in his behavior, which were early manifestations of acquired psychiatric disorder, and reports how his first period of active service was normal. After review of the competent and probative evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that he was insane, as defined by VA regulation, at the time of the offenses that led to his under other than honorable discharge. The Board acknowledges that his service treatment records do not show a diagnosis of an acquired psychiatric disorder during service. However, the October 2020 psychologist found that his symptoms during this time were likely early manifestations of his disorders in accordance with the DSM. He self-medicated with alcohol to alleviate his symptoms. Gardner, 22 Vet. App. at 419. Additionally, the Board finds that the evidence shows the Veteran exhibited, due to his acquired psychiatric disorders, a more or less prolonged deviation from his normal method of behavior. The October 2020 opinion suggests that the Veteran's acquired psychiatric disorders and his self-medication of symptoms grossly interfered with his capacity to meet the ordinary demands of life, as evidence by his changes in behavior, such as heavy drinking and engaging in aggressive behavior, such as being arrested for assault and battery. In this particular case, the Board finds the evidence of record is at least in equipoise as to whether the Veteran meets the definition of insanity. 38 C.F.R. § 3.354(a). He exhibited, due to disease, a more or less prolonged deviation from his normal method of behavior. Accordingly, the character of the Veteran's discharge from service is not a bar to the receipt of VA disability benefits. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder. The Veteran asserts service connection for an acquired psychiatric disorder, to include major depressive disorder. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has current diagnoses of unspecified depressive disorder and major depressive disorder, and that the evidence shows that they began during service. 38 U.S.C. §§ 1110, 5107(b). He has current diagnoses of unspecified depressive disorder and major depressive disorder. See 02/07/2013 CAPRI. As such, the first element of service connection is met. As discussed above, an October 2019 examiner stated that the Veteran had a diagnosis of unspecified depressive disorder that was related to issues that occurred around 2008 or 2009. A December 2020 examiner noted that the Veteran was seen by mental health in 2009 for issues that were in part related to his drinking. An addendum provided in March 2021 reported that the Veteran's unspecified depressive disorder was at least as likely as not related to mental health issues he experienced during military service, but less likely than not related to imminent danger. After review of the competent and probative evidence, the Board finds that service connection for unspecified depressive disorder and major depressive disorder is warranted. The October 2019 examiner and December 2020 examiner stated that the Veteran's depressive disorder began in 2008 or 2009 and/or were related to his drinking during this time. The March 2021 addendum reported that his disorder was related to his mental health issues he experienced during service. As such, the Board finds that service connection for unspecified depressive disorder and major depressive disorder is warranted. 38 C.F.R. § 3.102. 3. Entitlement to service connection for a right shoulder disability. The Veteran asserts service connection for a right shoulder disability. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of right shoulder arthritis during the period on appeal, and that the evidence tends to show it began during service and has continued since that time. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.310(a). He has a current diagnosis of degenerative arthritis in his right shoulder, to include as reported at the February 2021 examination. As such, the first element of service connection is met. His service treatment records show right shoulder pain in January 2012. The February 2021 examiner provided a positive nexus opinion. She explained that his service treatment records, and post discharge records show continuity of care for his right shoulder. He complained of right shoulder pain in January 2012 and 2013. Subsequently, and MRI in June 2016 documented right shoulder osteoarthritis. (Continued on the next page) After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence shows the Veteran's right shoulder disability initially manifested during service. His right shoulder pain began in January 2012 during service and has continued since that time, to include as reported in the February 2021 examination. As such, the Board finds that the evidence shows the Veteran's current right shoulder arthritis manifested during service and has continued since that time. Therefore, service connection for right shoulder arthritis is warranted. 38 C.F.R. § 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, Associate 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.