Citation Nr: 22007141 Decision Date: 02/08/22 Archive Date: 02/08/22 DOCKET NO. 17-28 426A DATE: February 8, 2022 ORDER The character of the appellant's discharge from service is not a bar to the award of Department of Veterans Affairs (VA) disability compensation benefits; to this extent the appeal is granted. FINDING OF FACT The appellant's discharge was not based on offenses involving willful misconduct, and was not otherwise based on conditions specified in VA regulations that is considered to have been issued under dishonorable conditions. CONCLUSION OF LAW The criteria for status as a veteran and basic entitlement to VA disability compensation benefits have been met. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.301. REFERRED MATTER The current appeal stems from the appellant's claim for entitlement to VA disability compensation benefits received by VA in November 2011. See October 2011 VA Form 21-526EZ. Based on the decision herein, the character of the appellant's discharge from service is no longer considered a bar to the award of VA disability compensation benefits. Given that the agency of original jurisdiction (AOJ) has not yet addressed the merits of the appellant's service connection claims, they are referred to the AOJ to address in the first instance. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant was in the United States Marine Corps from December 2006 to March 2010. A Board hearing was held before the undersigned Veterans Law Judge in May 2021, and a transcript of the hearing is of record. The character of the appellant's discharge from service is not a bar to the award of VA benefits. In order to qualify for VA gratuitous benefits, a claimant must first establish "veteran" status. 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). Factual Background In this case, the appellant entered active duty service on December 19, 2006. The appellant completed his initial training, without any adverse marks on his record. In March 2007, the appellant was transferred for training in his military occupational specialty (MOS) of Rifleman and Light Armored Vehicle Crewman. See Chronological Record; see also DD Form 214. While in training for his MOS, the appellant received a formal counseling for failure to obey an order or regulation. See May 2007 Administrative Remarks. The appellant was counseled for liberty violations, where his assigned liberty partner consumed alcohol underage; for failing to report to the duty noncommissioned officer that he had become separated from his liberty partner; and for returning late to the barracks. The appellant completed MOS training without record of further incident, and was transferred to his initial assignment in July 2007. The appellant reported that he was deployed to Iraq in support of Operation Iraqi Freedom (OIF) in September 2007. Service treatment records document that the appellant climbed over a wall while on patrol in Iraq and landed on his left shoulder. See also May 2021 Board hearing transcript. On December 2, 2007, shortly after the fall on his shoulder, the appellant reported that he was lifting weights and felt a popping sensation in his left shoulder with severe pain. See December 2007 service treatment record. The appellant was medically evacuated from Iraq to Germany on December 6, 2007. See Patient Movement Request. Service treatment records note that the appellant was to be transferred to the United States for continued care, and "[w]ill have ample supply of medications [Percocet] and can self-medicate." A December 11, 2007 MRI of the left shoulder revealed a complete tear of the left pectoralis major tendon with partial tear of long head of the bicep tendon. The appellant underwent surgery to repair his left shoulder on December 21, 2007. Service treatment records document that the appellant continued to report pain in his left shoulder following the December 21, 2007 surgery and, despite a January 7, 2008 note indicating that the appellant should be weaned from narcotics, continued to receive prescription narcotics for his left shoulder pain. On November 24, 2008, the appellant underwent another surgery for his left shoulder due to "significant biceps tendinitis and pain, and continued problems." The service treatment provider noted the appellant had failed injections, nonoperative care, and therapy. The appellant was prescribed 60 Percocet on November 24, 2008, and 20 Percocet on November 26, 2008 with an additional 30 Percocet from another military treatment facility. In a December 8, 2008 post-operative visit, the appellant reported severe left shoulder pain. The service treatment provider's disposition noted to contact the appellant's command and Substance Abuse and Rehabilitation Program (SARP) regarding the additional narcotics prescribed post-operatively. In a later entry, the provider noted that she contacted the appellant's command to advise that the appellant was drug seeking. In a December 16, 2008 note, the service treatment provider indicated the appellant had been admitted to an opioid rehabilitation facility. In a December 2008 SARP intake, the appellant reported chronic pain in his left shoulder since the injury and first surgery in December 2007. The appellant reported only fair pain relief with Percocet. The appellant was diagnosed with polysubstance dependence. The appellant underwent a medical examination on February 5, 2009. See February 2009 Report of Medical History. The appellant reported that he had a history of use of illegal drugs or abuse of prescription drugs. The physician's summary noted the appellant had a history of prescription drug abuse with recent hospitalization. Despite the appellant's history of prescription drug abuse related to his left shoulder condition and admission to an opioid rehabilitation facility, the appellant continued to receive narcotic prescriptions through military treatment facilities. See February 9, 2009 service treatment record; see also February 19, 2009 Emergency Care and Treatment record. On April 2, 2009, the appellant was tried by a special court martial. While a detailed description of the facts and circumstances related to the charges is not associated with service personnel records, the appellant was found guilty of: (1) on or about May 22, 2008 and on or about February 4, 2009, violating a lawful general order by wrongfully driving on base while his driving privileges were suspended; (2) on or about October 28, 2008, wrongfully possessing drug paraphernalia; and (3) between on or about January 28, 2009 and February 4, 2009 wrongfully using morphine. The appellant was sentenced to confinement for 40 days and a bad conduct discharge. In May 2009, the appellant was authorized voluntary appellate leave pending the convening authority's approval of his bad conduct discharge. In December 2009, the United States Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence adjudged by the appellant's special court martial. The appellant's bad conduct discharge was executed in March 2010. Law and Analysis As noted above, the appellant submitted an application for VA disability compensation benefits received by VA in November 2011. In the July 2013 VA decision on appeal, the appellant's bad conduct discharge was determined to be a bar to the award of VA disability compensation benefits due to willful and persistent misconduct. Under 38 C.F.R. § 3.12(d)(4), a discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious. The determination as to whether a discharge is based on willful and persistent misconduct is a matter of fact to be determined by the Board. See Stringham v. Brown, 8 Vet. App. 445, 447 (1995). The term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. See 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Here, the appellant contends that the May 2007 counseling for liberty violations involved only minor offense(s). See May 2021 Board hearing transcript. The Board agrees. The evidence of record does not suggest the liberty violation in May 2007 materially interfered with appellant's performance of military duties. Nor does it appear the counseling for this otherwise minor offense was even considered in the appellant's sentence to a bad conduct discharge. Additionally, the appellant contends that the special court martial offenses for traffic violations, involving violation of a lawful general order by wrongfully driving on base while his driving privileges were suspended, are minor offenses. See May 2021 Board hearing transcript. As noted above, mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. See 38 C.F.R. § 3.1(n)(2). The Board finds the appellant's two instances of driving on a base while driving privileges were suspended, nearly a year apart (on May 22, 2008 and on or about February 4, 2009), do not demonstrate misconduct that significantly interfered with the appellant's performance of his military duties, is more in the nature of a minor offense, and not persistent behavior. With respect to the special court martial charges involving wrongful possession of drug paraphernalia on October 28, 2008, and wrongful use of morphine sometime between January 28, 2009 and February 4, 2009, service records contain little detail concerning the facts and circumstances of the offenses. However, the appellant generally contends that his drug use in service was a result of addiction to narcotics that he was prescribed for his left shoulder that was injured while participating in combat operations. See June 2017 VA Form 9 with associated correspondence; see also May 2021 Board hearing transcript. The appellant asserts that his service, to include his participation in OIF, was otherwise honest, faithful, and meritorious. The Board finds that the particular facts of this case support the appellant's assertions. The appellant had no history of illegal drug use or abuse of prescription drugs prior to or during service until after his shoulder injury while on deployment in 2007. Service treatment records document the appellant was prescribed narcotics for his left shoulder in December 2007, and despite a January 7, 2008 note indicating that the appellant should be weaned from narcotics, continued to receive prescription narcotics for his left shoulder pain. Indeed, the appellant continued to receive prescription narcotics for his left shoulder pain through at least February 2009, even after his admission to an opioid rehabilitation facility in December 2008 where he was diagnosed with polysubstance dependence. While 38 C.F.R. § 3.301(c)(3) pertains to line of duty and misconduct in relation to service connection for disability, the Board finds it relevant to the discussion herein concerning "willful misconduct." Pertinently, under 38 C.F.R. § 3.301(c)(3), "where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin." Here, service treatment records demonstrate that the appellant developed polysubstance dependence as a result of prescription drugs used to treat his left shoulder pain for more than a year following his left shoulder injury in December 2007. In accordance with VA regulations, this context reasonably shows the appellant's drug-related offenses leading to his bad conduct discharge were not of misconduct origin, involving deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Likewise, the specific behaviors enumerated are limited in number as to argue against a finding of persistence. As such, the Board finds "willful and persistent misconduct" is not shown. In sum, the Board finds the bar to VA disability compensation benefits under 38 C.F.R. § 3.12(d)(4) for willful and persistent misconduct is not applicable. Additionally, the Board finds that the other regulatory and statutory bars to the award of VA disability compensation benefits are not for application in this case. Accordingly, the basic eligibility requirement for status as a veteran and entitlement to VA disability compensation benefits have been met. To this extent, the appeal is granted. MICHAEL KILCOYNE 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.