Citation Nr: 21040296 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-19 675 ATE: July 3, 2021 REMANDED The issue of whether the character of the Appellant's service from July 12, 2000 to October 1, 2008, constitutes a bar to receiving Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The Appellant served on active duty from July 2000 to October 2008, at which time he received a bad conduct discharge pursuant to a conviction by general court-martial on a charge of indecent assault. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2013 administrative decision of the VA Regional Office (RO) in St. Petersburg, Florida. In December 2018, the Board remanded the appeal for further development, as discussed below. Unfortunately, the Board finds that there has not been substantial compliance with the Board's previous remand directives regarding this issue. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Board sincerely regrets further delay in this matter, additional development is required before the Appellant's claim may be adjudicated on the merits The issue of whether the character of the Appellant's service from July 12, 2000 to October 1, 2008, constitutes a bar to receiving VA benefits is remanded. In its December 2018 Remand, the Board stated: The Appellant's personnel records are incomplete. While the record contains the October 2005 general court-martial order and the June 2008 affirmation of the general court-martial order, records otherwise relating to the misconduct that led to the Appellant's separation are unavailable. For example, the record contains no documents otherwise relating to the Appellant's disciplinary record, the October 2005 general court-martial, his period of in-service confinement, or his appeal of the October 2005 general court-martial order, and it does not appear that the Agency of Original Jurisdiction (AOJ) has requested copies of such documentation. The Board specifically directed the RO to "undertake all appropriate efforts to obtain a complete copy of the Appellant's personnel file, including all records relating to his disciplinary record, general court-martial, period of in-service confinement, and his appeal of the October 2005 court-martial order." The Board notes that the RO made one request for records to the National Personnel Records Center (NPRC) for the Appellant's Official Military Personnel File (OMPF). The NPRC provided the records for the Appellant's first period of service, and records from his second period of service which were already of record. There is no evidence that the RO verified the information received to ensure that it complied with the December 2018 Remand directives. Furthermore, the records received only contain the court-martial order and no other supporting documentation. The RO also made no attempts to obtain the documents from the Air Force Personnel Command, the Air Force Judge Advocate Generals Office, the Air Force Office of Special Investigations (OSI), or other repositories of such information. Additionally, the Appellant submitted an excerpt from an investigation report by the Air Force OSI. The complete report is not currently of record and should be obtained on remand. Further, under military law, the Appellant was convicted by a General Court Martial which sentenced the Appellant to a punitive Bad Conduct Discharge. It is well known that such a discharge by courts-martial generates a verbatim transcript of the proceedings, and a record of trial which could reflect on the Appellant's mental condition at the time of these offenses. The Appellant pled not guilty to three offenses at trial, and the military judge found him guilty on one lesser included offense of indecent assault, however, the record of trial could indicate whether there were any defenses (such as insanity or reduced mental capacity) that the Appellant through counsel had explored or raised at trial. Such a record of trial is both a government record and could support the Appellant's contentions. 38 U.S.C. § 5103A(c). As such, the Board finds that remand is required, under Stegall, to obtain the Appellant's complete military personnel records, to include court martial documents and other records related to his in-service misconduct. Additionally, the Board notes that the December 2018 remand directives have not been complied with regard to obtaining an adequate VA opinion to assist in the adjudication of this appeal. In its December 2018 Remand, the Board directed the AOJ to obtain an addendum opinion to determine whether or not the Appellant met the definition of insane under VA regulations. The Board notes that the June 2019 medical opinion is not in substantial compliance with regard to the December 2018 remand order, which specifically stated that the examiner should provide an opinion as follows: whether it is at least as likely as not that the Appellant was "insane" at the time he committed the offenses (including periods of AWOL) leading to his discharge. The examiner must apply VA's definition of an "insane" person as "one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted on 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 examiner must address the Appellant's in-service and post-service psychiatric treatment and the private psychiatric opinions dated March 2013, May 2014, September 2014, and February 2015. The examiner did not provide any response to this specific request in his June 2019 opinion. Rather, the examiner stated that he "can offer no opinion as to the (Appellant's) sanity under the VA definition without resorting to mere speculation," and contended that such a determination under the VA definition was not possible by any clinician. The Board finds that the VA examination is inadequate and did not comply with the Remand directive. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, a new opinion is required in order to obtain the previously requested etiological opinion regarding whether the Appellant met the definition of insanity under 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). The matter is REMANDED for the following action: 1. The RO should contact the Appellant and afford him an opportunity to submit any evidence related to his court martial conviction which he may have in his possession. He should also be afforded an opportunity to identify other sources which may have custody of such evidence. 2. The RO should contact the appropriate organization in order to obtain a copy of the Appellant's complete Air Force personnel records, court martial documents, record of trial, and reports of investigation conducted by military law enforcement, to include Air Force Office of Special Investigations (OSI), Air Force Personnel Command, and Air Force Judge Advocate Generals Office. After completing the preceding development in the above paragraphs, obtain a VA psychiatric opinion from a psychiatrist other than the one who provided the June 2019 opinion on whether the Appellant was "insane" at the time he committed the offenses (including periods of AWOL) leading up to his discharge. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Appellant's military personnel records, service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Appellant was insane at the time he committed the offenses leading up to his discharge. The examiner must apply VA's definition of an "insane" person as "one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted on 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 examiner must address the Appellant's in-service and post-service psychiatric treatment and the private psychiatric opinions dated March 2013, May 2014, September 2014, February 2015, and June 2020. Rebecca N. Poulson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.