Citation Nr: 24001497 Decision Date: 01/09/24 Archive Date: 01/09/24 DOCKET NO. 20-05 326 DATE: January 9, 2024 REMANDED Whether the appellant's character of discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits, exclusive of health care under Chapter 17, Title 38, United States Code, is remanded. Entitlement to service connection for PTSD, for VA compensation purposes, is remanded. REASONS FOR REMAND The appellant served on active duty from March 2011 to April 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). The appellant was afforded a hearing before the undersigned Veterans Law Judge in February 2023. A transcript of the hearing is associated with the electronic claims file. 1. Whether the appellant's character of discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits, exclusive of health care under Chapter 17, Title 38, United States Code, is remanded. Although the Board regrets the delay, it finds that remand is necessary for further development to properly adjudicate the appellant's claim. The appellant essentially seeks "veteran" status. He contends his character of discharge should not be a bar to VA compensation benefits, and that he had been suffering from psychiatric impairment, characterized as posttraumatic stress disorder (PTSD), in service which contributed to his misconduct. As an initial matter, there is evidence that the appellant has filed a request to upgrade his character of discharge, with the Army Discharge Review Board (ADRB) or Army Board of Correction of Military Records (ABCMR). See April 2020 correspondence. The appellant's submission to the ADRB or ABCMR, if any, could materially impact the adjudication of the character of discharge claim. As such, the Board finds that a remand is necessary to determine whether the service department has received and/or decided on the appellant's request for an upgrade to his discharge and obtain any related decisions or determinations. Furthermore, in the February 2023 Board hearing, the appellant identified relevant outstanding private treatment records. Specifically, the appellant testified that he received treatment for PTSD at Camp Hope Treatment Center. To date, the record only includes a January 2019 statement from the Cape Hope Clinical Director which summarizes that the appellant had been treated at Cape Hope from June 2018 to January 2019. However, the underlying treatment records have not been obtained. Therefore, a remand is required to allow VA to obtain authorization and request these records. Character of Discharge Turning to the evidence of record, the appellant's service personnel records indicate that he served as a infantryman, military occupational specialty (MOS) 11B, with service in Afghanistan from December 2011 to December 2012. The appellant was awarded the Combat Infantryman Badge. The appellant's service personnel records also show that he was discharged in April 2015 with an OTH (other than honorable) discharge. The service personnel records also indicate the following: On October 5, 2013, the appellant and several friends were involved in an altercation with another group of service members in Lakewood, Washington. During the altercation, one of the appellant's friends stabbed another service member with a knife which resulted in his death. Immediately following the stabbing, the appellant and his friends fled the area in the appellant's car. The appellant took the murder weapon and disposed of it in a nearby wooded area. He also attempted to use bleach to clean his car and hid his car to avoid detection. On October 5, 2013, the appellant and two other service members were arrested and confined at Pierce County Jail pending trial. On August 13, 2014, the appellant pled guilty to Rendering Criminal Assistance in the First Degree, a felony. He was sentenced to confinement for 12 months and payment of a fine of $1,200.00. The court granted him credit for time served and he was released from Pierce County Jail on August 13, 2014. In December 2014, the appellant's commander initiated an administrative separation action to separate him from military service for commission of serious offense, specifically, unlawfully and feloniously rendered criminal assistance in the murder of another service member by disposing of the murder weapon. The appellant was notified of his rights and met with legal counsel. In February 2105, the appellant waived his rights to an administrative separation board, to include his rights to present defenses to the action, such as insanity, On March 24, 2015, the commanding general approved the proposed administration separation and directed that the appellant be discharged with an under OTH characterization of service under the provisions of Chapter 14, Army Regulation 635-200, effective April 29, 2015. Based on the above, the AOJ has determined that the character of the appellant's discharge from service is a bar to his entitlement to VA compensation benefits. However, the law provides that such a discharge will not be considered a bar to receipt of VA monetary benefits if it is found that the person was insane at the time of committing the offense(s) causing such discharge or, for a prolonged period of AWOL, if there are "compelling circumstances to warrant the prolonged unauthorized absence." 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b), (c)(6) and 3.354(b). Specifically, pursuant to 38 U.S.C. § 5303(b), "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated." For purposes related to the character of discharge, an insane person is 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. 38 C.F.R. § 3.354(a). In May 1997, the VA General Counsel discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his normal method of behavior could best be resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97, 62 Fed. Reg. 37955 (1997). The opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import, and consequences of his acts; he is a danger to himself or others. He is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. The term "constitutionally psychopathic" refers to a condition that may be described as an antisocial personality disorder. The term "become antisocial" refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id. The appellant has not specifically claimed to be insane at the time that he committed his criminal offenses. However, the appellant alleges that he had suffered from psychiatric symptoms in service which contributed to the misconduct which led to his OTH discharge. In the November 2023 Board hearing, the appellant stated that "my PTSD was definitely triggered during the incident which led me to make a rushed--a bunch of rushed, you know, unthoughtful decisions..." In January 2017, the appellant also reported that "I have recently been diagnosed with PTSD and (it) has been something that I have been struggling with since my return from the deployment in 2012. The flashbacks, anxiety, nightmares, and inability to sleep, is what led me (to) getting an other than honorable discharge." See January 2017 Statement in Support of Claim. The Board notes that the appellant's service treatment records (STRs) indicate positive PTSD screenings, as well as treatment for insomnia and nightmares during and following his service in Afghanistan. He also underwent treatment with the Army Substance Abuse and Prevention program due to cannibis abuse. He has also been diagnosed with unspecified bipolar and related disorder, tobacco use disorder, cannabis use disorder and alcohol use disorder following service. In a February 2019 VA examination, the examiner noted that the appellant had PTSD related to his service in Afghanistan. However, the VA examiner did not provide an opinion on the issue of insanity at the time of the appellant's misconduct. The Board is cognizant that a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the Court has also held that the Board is required to obtain a medical opinion to determine whether a claimant's behavior during the offenses that led to his discharge was due to psychiatric disability. Gardner v. Shinseki, 22 Vet. App. 415 (2009), see also Beck v. West, 13 Vet. App. 535, 539 (2000) (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). Accordingly, given the contentions raised, the Board finds that development is warranted regarding the appellant's mental state at the time of the misconduct that led to his April 2015 discharge. 2. Entitlement to service connection for PTSD, for VA compensation purposes, is remanded. In the November 2016 administrative decision, the AOJ granted Chapter 17 healthcare benefits for any disability that has been service-connected. In the same decision, the AOJ denied entitlement to other VA benefits, to include disability compensation, based on the appellant's OTH discharge under 38 C.F.R. § 3.12(d)(3). In a November 2016 rating decision, the AOJ granted service connection for treatment purposes for psychosis/mental illness which was incurred in service. In the November 2019 Statement of the Case, the AOJ denied service connection for PTSD for "VA disability benefits." The Board notes that the appellant is receiving VA treatment for PTSD, as well as unspecified bipolar and related disorder, tobacco use disorder, cannabis use disorder and alcohol use disorder, under Chapter 17. See July 2018 VA treatment records (noting appellant is approved for mental health care only). Based on this evidence, the Board finds that the AOJ has implicitly granted service connection for PTSD for treatment purposes. Therefore, the Board will categorize the claim as a claim for service connection for PTSD for VA compensation benefits. As such, because a decision on the remanded character of discharge issue could significantly impact a decision on the issue of entitlement to service connection for PTSD, for VA compensation purposes, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for PTSD, for VA compensation purposes, is required. The matters are REMANDED for the following action: 1. Contact the appellant and clarify whether he submitted an Application for a Review of Discharge to the ABCMR. Request that the appellant provide VA a copy of any pending applications to the BCMR and any findings pertaining to the application for discharge upgrade. 2. Request copies of any outstanding records and decisions associated with the appellant's applications for an upgrade of the character of his discharge from the Department of the Army, to include the underlying records and outcome of any application submitted to the BCMR. Only if the character of the appellant's discharge has not been upgraded to honorable, the AOJ should continue development as to the character of discharge as follows. 3. Ask the Veteran to complete a VA Form 21-4142 for Camp Hope Treatment Center. Make two requests for the authorized records from Camp Hope Treatment Center unless it is clear after the first request that a second request would be futile. 4. Thereafter schedule the appellant for a VA examination in order to obtain a medical opinion by an appropriate clinician addressing whether the appellant was insane under VA regulations at the time of the misconduct which led to his April 2015 discharge under other than honorable conditions. After examination of the appellant and review of his claims file, the examiner should respond to the following: (a) Was a psychiatric disability the cause or contribute to the behavior that led to the appellant's discharge in April 2015? (b) Was the appellant insane at the time he committed the acts, in violation of the Uniform Code of Military Justice, that led to his discharge under other than honorable conditions? In providing an answer to these questions, the examiner is advised that, for the purposes of this matter, an insane person is one who, due to disease, exhibits 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. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. The examiner must provide a complete, well-reasoned rationale for any opinion offered. If a requested opinion pertaining to service connection cannot be rendered without speculation, the examiner must state in the examination report whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal, including the inextricably intertwined issue of entitlement to service connection for PTSD. If the benefit sought is not granted to the Veteran's satisfaction, send the appellant and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. 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.