Citation Nr: 22028432 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 12-04 262 DATE: May 13, 2022 REMANDED Whether the character of the Appellant's discharge from service constitutes a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded. Entitlement to participate in the Veterans Retraining Assistance Program (VRAP) is remanded. REASONS FOR REMAND The Appellant served on active duty with the United States Army from August 1980 to March 1983; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 administrative decision issued by a VA Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits. This case was most recently before the Board in October 2020, when the appeal of the character of discharge issue was denied. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Remand (JMR). In June 2021, the Court granted the JMR, vacating the October 2020 Board decision and remanding the case for further proceedings. The case has been returned to the Board at this time for further appellate review. The Appellant testified regarding the character of his discharge at Board hearings in September 2012 and March 2017. The Veterans Law Judge (VLJ) who held those hearings is no longer with the Board and therefore cannot participate in the final decision. In November 2021, the Board offered the Appellant an opportunity for a new hearing. As no response was received from the Appellant, the Board will proceed on the merits of the claim without a new hearing; transcripts of the September 2012 and March 2017 hearings are of record and will be considered. 1. Whether the character of the Appellant's discharge from service constitutes a bar to the receipt of VA benefits is remanded. Typically, benefits are not payable where the former servicemember was discharged due to willful and persistent conduct. 38 C.F.R. § 3.12(d)(4). However, a finding of insanity can lift this bar to benefits. 38 C.F.R. § 3.12(b). In the June 2021 JMR, the Parties agreed that remand is necessary to obtain an adequate medical opinion regarding whether the Appellant was insane, as defined by VA regulations, at the time of the misconduct that led to his discharge. Specifically, the Parties agreed that the May 2020 VA opinion, upon which the Board relied in the October 2020 denial, is inadequate. The examiner questioned the Appellant's credibility and rejected many of his lay statements regarding psychiatric symptoms, but relied on his reporting to find that he began abusing substances prior to his military service. The examiner also failed to address a diagnosis of "maladjustive behavior" in the Appellant's service treatment records. The Board previously found the other VA opinion in the record, from July 2015, to be inadequate as well. A remand is necessary to obtain an opinion regarding whether the Appellant was insane at the time of the misconduct that led to his discharge. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). 2. Entitlement to participate in VRAP is remanded. The VRAP issue is intertwined with the character of discharge issue remanded above and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 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 discharge. The need for an in-person examination is left to the discretion of the examiner. Following a review of the claims file, and examination of the Appellant if deemed necessary, the psychologist or psychiatrist should offer an opinion as to whether the Appellant was "insane," as defined by VA regulations, at the time of the misconduct that led to his discharge under other than honorable conditions. The examiner should be advised that 38 C.F.R. § 3.354(a) defines "insanity" 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 term "insanity" refers to a condition involving conduct which deviates severely from the social norm or interferes grossly with the capacity to meet the ordinary demands of life. See VAOPGCPREC 20-97. 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, and therefore, does not constitute insane behavior under 38 C.F.R. § 3.354(a). After review of the definition of "insanity," the examiner should respond to the following: 1) 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? 2) Did the Appellant, due to disease, interfere with the peace of society concurrent with his misconduct in service? 3) 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? In providing the requested opinions, the examiner must consider and discuss the Appellant's history of psychiatric diagnoses, including the in-service diagnosis of "maladjustive behavior." If the examiner rejects any of the Appellant's lay reports, the examiner must provide a reason for doing so; likewise, if the examiner accepts certain reports made by the Appellant but rejects others, the examiner must explain the rationale for doing so. A complete medical rationale for all opinions expressed must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.