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Citation Nr: 1122137 Decision Date: 06/08/11 DOCKET NO.

08-32 501 ) ) )

Archive Date: 06/20/11 DATE

On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether the character of the Veteran's discharge from military service consti tutes a bar to VA compensation for the period of service from February 6, 2002 t o August 5, 2002. 2. Entitlement to service connection for a psychiatric disability, to include po sttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: WITNESSES AT HEARING ON APPEAL Appellant and M.D. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran had honorable active service from August 1995 to August 1999 and Aug ust 2000 to June 2001. His service from February 6, 2002 to August 5, 2002 resu lted in a discharge under other than honorable conditions. These issues come before the Board of Veterans' Appeals (Board) on appeal from t wo separate decisions of the Department of Veterans Affairs Regional Office (RO) in San Diego, California. In January 2008, the RO found in an administrative d ecision that the Veteran's service for the period of February 6, 2002 to August 5, 2002, must be dishonorable for VA purposes. In August 2008, a claim for serv ice connection for PTSD was denied. In January 2011, the Veteran testified before the undersigned at a Board hearing . A copy of the transcript has been associated with the file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Was hington, DC. VA will notify the appellant if further action is required. REMAND The Veteran was sent a notice letter in November 2007 informing him that because his third period of service (February 6, 2002 to August 5, 2002) was under othe Disabled American Veterans

r than honorable conditions VA had to make a determination on his eligibility fo r VA benefits stemming from that period of service. The Veteran was given notic e of 38 C.F.R. 3.12 (2007) only. On remand, the Veteran should be told what evi dence is needed to substantiate his claim for eligibility for VA benefits, to in clude any contention that he was insane, within the meaning of the regulations 3 8 C.F.R. 3.12 and 3.354 (2010), at the time of the offense that led to his discha rge from service. At the January 2011 Board hearing, the Veteran stated he attempted to get medica l records from his time served in the county jail, but was unsuccessful. (Trans cript, p 4, 12-13). The Veteran has stated that he was diagnosed with dissociat ive amnesia during the event by Dr. Bailey, who treated him while he was in the county jail. (Transcript, p 4.) On remand, VA should attempt to obtain records from the San Bernardino County Sheriff West Valley Detention Center (Transcript , p 17). According to an abstract of judgment and prison commitment from March 2003, the Veteran was convicted of four charges of assault with a deadly weapon. Police r eports regarding the incident are in the file. The police reports show that whi le the Veteran was separated from his wife and living apart from her, he entered her home and attacked her and three others with a screwdriver. The victims sus tained serious injuries. The Veteran was apprehended by the police and confesse d immediately. The incident occurred on February 28, 2002, days after the Veter an had reenlisted for a third time with the military. In November 2007, the Veteran asserted he had no control over his actions that l anded him in prison. He had prior honorable service and was a good Marine; he i mplied that he was insane at the time of the incident. He submitted his June 20 02 statement where he waived his right to an administrative board decision on hi s discharge. At that time, he did state that he was incarcerated and had a rece nt evaluation by the facility psychiatrist. He said the psychiatrist told him h e had dissociative amnesia at the time of the incident. The Veteran claimed he found his wife having sex with another man. The Veteran stated that his miscond uct was not acceptable, but he felt that his career should not be ended due to " an acute medical condition" that he had no control over. The Veteran submitted a copy of an August 2008 application for review of dischar ge with the BCNR. He also submitted a copy of an April 2008 response to the NDR B. On remand, the AOJ should request determinations from these two entities. A determination is needed regarding the Veteran's sanity at time he committed th e four assaults. There is a regulatory character of discharge bar to establishi ng entitlement for VA benefits; it includes discharge or release from service fo r an offense involving moral turpitude (generally, the conviction of felony). 3 8 C.F.R. 3.12(d)(3) (2010). A discharge or release from service under one of th e conditions specified in 38 C.F.R. 3.12 is a bar to the payment of benefits unl ess it is found that the person was insane at the time of committing the offense causing such discharge. 38 C.F.R. 3.12(b), 3.354 (2010). VA regulations provide that an insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been eng rafted upon such basic condition, exhibits, due to disease, a more or less prolo nged deviation from his normal method of behavior; or (2) who interferes with th e peace of society; or (3) who has so departed (become antisocial) from the acce pted 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 c ommunity in which he resides. 38 C.F.R. 3.354(a) (2010). In May 1997, VA's then General Counsel discussed the intended parameters of the types of behavior that were defined as insanity under 38 C.F.R. 3.354(a). Behav

ior involving a minor episode or episodes of disorderly conduct or eccentricity or behavior that is attributable to a personality disorder is not insanity. VAO PGCPREC 20-97 (May 22, 1997). Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of th e mental faculties to the extent that the individual is unable to understand the nature, full import and consequences of his acts; he or she is a danger to hims elf or others. Id. He or she is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appoin tment of a guardian. Id. The term "constitutionally psychopathic" refers to a condition that may be descr ibed 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 pe rsonality disorder. Id. There must be competent evidence establishing the appellant was insane at the ti me of the offenses in question leading to the other than honorable discharge. Z ang v. Brown, 8 Vet. App. 246, 254 (1995). The Veteran has the burden of proof. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). Competent medical evidence i s required on this question. See Gardner v. Shinseki, 22 Vet. App. 415 (2009). Here, the Veteran submitted an October 2005 state department of corrections (DOC ) progress note showing the Veteran reported episodic anger and rage and describ ed episodes of "dissociative amnesia." The Veteran was intact, coherent and rat ional with no obvious primary process encroachment during the session. The writ er stated: "Sounds like he has a frontal temporal lobe seizure disorder." On remand, the AOJ should obtain an opinion as to whether the Veteran was insane on February 28, 2002 when he assaulted his wife and several others with a screw driver, causing bodily harm. In coming to a conclusion, the examiner should tak e into account VA's definition of insanity and explain all rationale. The Veteran has also filed a claim for a psychiatric disability, to include PTSD . The file shows the Veteran has complained of symptoms of a psychiatric disabi lity. It is important to note that even if the Veteran is barred from receiving VA compensation from his third period of service, his prior periods of service were honorable and he may receive compensation from disease or injury incurred o r aggravated during those periods of service. In a stressor form received in December 2007, the Veteran stated he fell in cold water during a training exercise at Camp Lejeune in January 1998 and saw a fell ow Marine accidentally shot in the leg at Camp Lejeune in January 1998. These stressors were not verified by the August 1998 history of the Veteran's un it. A February 1997 service treatment mental health record shows the Veteran was see n by a clinical psychologist (This visit occurred during a period of honorable s ervice). He was referred because he told a peer that he was considering bodily harm to fellow Marines and himself. His background history was briefly reviewed. He was a firing range supervisor. He like his job and the only job-related trouble he'd had was being late once. He was married with children, but his wife had recently left him and gone back to their home state. He said there was a lot of financial stress. His only psy chiatric history was going to see a psychiatrist in 1989; he was taken by his mo ther and he didn't know why. His parents separated when he was young and his mo ther remarried when he was 11. He was in good health, not on any medication and volunteered as firefighter for the community.

A mental status examination was normal except for his verbalization regarding bo dily harm to self and others. The diagnostic impression was adjustment disorder with anxiety and a partner relationship problem. Follow up was recommended; th e Veteran was to have no access to weapons until he was reassessed in 30 days. Several days later, the Veteran returned to say he had worked things out with hi s wife. The following month, the Veteran met with the psychologist and had a go od meeting. He was working on finances and on a marriage enrichment course with the chaplain. Upon separation in September 1999, no psychiatric complaints or symptoms were noted. The U.S. Court of Appeals for Veterans Claims (Court) has held that the Board mu st broadly construe claims, and in the context of psychiatric disorders must con sider other diagnoses for service connection when the medical record reflects ot her diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). State DOC medical r ecords from July 2003 to September 2008 show varying psychiatric diagnoses with little rationale for each diagnosis. These diagnoses include: Axis I PTSD, depr essive disorder, anxiety disorder, intermittent explosive disorder, and a mood d isorder. A May 2009 VA mental health record showed a diagnosis of bipolar mood disorder versus organic mood disorder. A history of PTSD was noted and ADHD was to be ruled out. The most recent record in January 2011 shows a diagnosis of b ipolar disorder and PTSD. As the Veteran has competently stated symptoms of a psychiatric disability and w as shown to have sought psychiatric care in service, he should be given a VA exa mination to determine the nature and etiology of any psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. First, send the Veteran a corrective notice letter in accordance with 38 U.S. C.A. 5102, 5103, and 5103A (West 2002). The Veteran should be told what evidence is needed to substantiate his claim for eligibility for VA benefits, to include any contention that he was insane, within the meaning of the regulations 38 C.F .R. 3.12, 3.354, at the time of the offense that led to his discharge from servic e. 2. Next, with any necessary assistance from the Veteran, request medical records from the San Bernardino County Sheriff West Valley Detention Center. A negativ e reply is requested and should be associated with the claims file. 3. Request information regarding the Veteran from the Bureau of Correction of Na val Records and the Naval Discharge Review Board; request copies of all determin ations regarding the character of the Veteran's discharge and the records relied upon. A negative reply is requested and should be associated with the claims f ile. 4. After the above development is completed, schedule the Veteran for a VA exami nation and opinion to determine the Veteran's mental state on February 28, 2002 when he committed the four assaults and the etiology of any current psychiatric disability. The claims folder and a copy of this Remand must be made available to the examiner in conjunction with the examination. The examiner should indicate whether the Veteran was insane at the time he attac ked his wife and others on February 28, 2002. See 38 C.F.R. 3.354 (2010) as di scussed in this document. The examiner must provide a complete rationale for al l opinions. Next, for any psychiatric disability diagnosed, the examiner should indicate whe ther it is likely as not (50 percent probability or greater) related to the Vete ran's active service-in coming to this determination the examiner must state the

period of service to which the disability is related. The examination report s hould include the complete rationale for all opinions expressed. 5. Re-adjudicate the Veteran's claims for whether his character of the discharg e from service constitutes a bar to VA compensation and pension benefits for the period of service of February 6, 2002 to August 5, 2002 and service connection for a psychiatric disability. If the benefits sought on appeal remain denied, t he Veteran and his representative should be provided with a supplemental stateme nt of the case (SSOC). The SSOC must contain notice of all relevant actions tak en on the claim for benefits, to include the applicable law and regulations cons idered pertinent to the issue currently on appeal, as well as a summary of the e vidence received since the issuance of the most recent supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the ma tters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all cl aims that are remanded by the Board or by the Court for additional development o r other appropriate action must be handled in an expeditious manner. See 38 U.S .C.A. 5109B, 7112 (West Supp. 2010).

_________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. 7252 (West 2002), only a decision of the Board is appealable t o the Court. This remand is in the nature of a preliminary order and does not c onstitute a decision of the Board on the merits of your appeal. 38 C.F.R. 20.11 00(b) (2010).

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