Citation Nr: 21040064 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-40 410 DATE: July 2, 2021 REMANDED The issue as to whether the character of the appellant's discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, to include health care benefits under Title 38 Chapter 17, is remanded. REASONS FOR REMAND The appellant was in the United States Air Force from May 20, 1981 to August 11, 1987. Available service records document that the appellant received a bad conduct discharge by reason of the sentence of a special court martial. In April 2020, the Board remanded the current appeal for additional development. The Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed further below. As a preliminary matter, the appellant's mailing address was updated pursuant to his correspondence submitted in March and May 2021. The Board acknowledges the appellant's submission of additional evidence for the Board's consideration in March 2021. Additionally, the Board acknowledges the appellant's request for copies of any records or development ordered following his correspondence submitted in January 2021, to include as a result of the evidence and argument submitted by the appellant in March 2021. Review of the file shows that no records or additional development was ordered. 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). In this case, the appellant was initially recommended for discharge with a general characterization of service in April 1986 for misconduct due to drug abuse. See April 1986 Recommendation for Discharge (noting additional disciplinary actions and derogatory information). However, it appears the appellant committed additional offenses during the processing of the April 1986 recommendation for administrative separation. Newly received service personnel records were associated with the claims file in August 2019, which note that the appellant was arraigned and tried before a special court martial in May 1986 for, with the intent to defraud, the wrongful delivery of drafts for the payment of money without having sufficient funds for the payment on four occasions between March and April 1986. See September 1986 Special Court Martial Order. In July 1986, the appellant was sentenced to a bad conduct discharge, forfeiture of pay for two months, and confinement for two months. See also July 1987 Special Court Martial Order (directing execution of the bad conduct discharge). Evidence submitted by the appellant in January 2021 includes a May 1986 Action Memorandum in which the Secretary of the Air Force directed the appellant be discharged under honorable conditions under Air Force Regulation 39-10 (AFR 39-10), Separation Upon Expiration of Term of Service, for Convenience of the Government, Minority, Dependency and Hardship. The May 1986 Action Memorandum terminated action under AFR 35-4, Physical Evaluation for Retention, Retirement, and Separation. The appellant suggests that the May 1986 Action Memorandum demonstrates evidence of prior periods of honorable service. See also July 2017 VA Form 9. The appellant's DD Form 214 notes "continuous active military service" from May 20, 1981 until his bad conduct discharge on August 11, 1987. In this regard, and in determining whether the appellant may have completed a prior period of honorable service, the Board notes that voluntary extension beyond the term of the initial active duty service obligation is not predicated upon an intervening enlistment or reenlistment to qualify as a "discharge." See 38 U.S.C. § 101(18); 38 C.F.R. § 3.13(c). Here, the available service records suggest that the appellant was extended on active duty for medical evaluation. However, it appears that the appellant's complete service personnel records have not been associated with the claims file. The Board finds remand is necessary to attempt to obtain the appellant's complete service personnel records before an informed decision can be made. As a separate consideration, the April 2020 Board decision found that the issue of insanity as an exception to the bar to the receipt of VA benefits was raised by the record. See 38 C.F.R. §§ 3.12(b), 3.354. The Board remanded the current appeal in April 2020 to obtain a medical opinion as to whether the appellant's behavior at the time of his misconduct was due to disease. See; Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (insanity need not be causally connected to the misconduct that led to the discharge, but it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis). With respect to the appellant's report of symptoms of posttraumatic stress disorder (PTSD) at the time of his misconduct in service, the appellant reported that he was assigned to the Prime Base Engineer Emergency Force (BEEF) Team that was dispatched to the scene of a B-52 crash in December 1982. See November 2018 VA Form 21-4138. The appellant reported that he was tasked with marking and surveying the site. In October 2020 correspondence, the appellant reported psychological trauma from witnessing the wreckage and described gruesome sights at the scene. The appellant reported he used cannabis to cope with mental health symptoms in service, which led to the financial issues resulting in his bad conduct discharge. In November 2020, the appellant submitted a Unit Historical Data Report noting that Engineering Technicians from the appellant's squadron surveyed the crash site of the December 1982 B-52 crash. While the appellant's performance evaluations note that he was a member of the Prime BEEF Team, the appellant was not an Engineer Technician. The appellant's military occupational specialty was Inventory Management Specialist, and performance evaluations note that his duties as a member of the Prime BEEF Team involved assisting the Prime BEEF Team in sorting and monitoring Team equipment and tools. The appellant's performance evaluations are notably silent for duties or achievements related to participation in the response and/or cleanup of the December 1982 B-52 crash site. However, insofar as the appellant asserts that he had mental health symptoms concurrent with his misconduct in service, the Board observes that the appellant sought mental health treatment in December 1984. The appellant reported having problems of anger due to a personality conflict with a supervisor. The provider noted an assessment of job-related difficulty. In a November 1985 Report of Medical History, the appellant reported a history of trouble sleeping, and depression or excessive worry. The provider indicated the appellant reported insomnia since 1978 with unknown cause, and excessive worry since September 1985 caused by work. In substantial compliance with the April 2020 Board remand, a medical opinion was obtained in September 2020 as to whether the appellant's behavior at the time of his offenses in service was due to a psychiatric disease. However, the Board finds the September 2020 negative medical opinion is based primarily on a lack of documentation of a psychiatric disorder in service. While the lack of contemporaneous medical records may be considered and weighed against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In light of the above, the Board finds remand is necessary to obtain a new medical opinion. The matters are REMANDED for the following action: 1. Attempt to obtain the appellant's complete service personnel records, to specifically include any enlistment and/or reenlistment contracts during the appellant's period of service from May 20, 1981 to August 11, 1987. 2. Obtain a medical opinion from a psychologist or psychiatrist as to whether the appellant had a mental disorder at the time of the misconduct that resulted in his bad conduct discharge. Following a review of the claims file, to include the decision herein, the psychologist or psychiatrist 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 misconduct in service? (b.) Did the appellant, due to disease, interfere with the peace of society concurrent with his misconduct in service? (c.) Did the appellant, due to disease, depart (become 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 misconduct in service? As it relates to the above questions, the Board notes that VA's General Counsel has held that behavior which is generally attributable to a particular substance-abuse disorder does not exemplify the severe deviation from the social norm or gross nature of conduct which is generally considered to fall within the scope of the term insanity (as defined by VA regulations), and therefore, does not constitute insane behavior. See VAOPGCPREC 20-97. A complete medical rationale for all opinions expressed must be provided. 3. Readjudicate the appeal, to include a determination as to whether the appellant has any prior periods of honorable service during his active duty from May 20, 1981 to August 11, 1987. If the benefit sought remains denied, issue the appellant a supplemental statement of the case and inform the appellant of his appeal options. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.