Citation Nr: 0004273 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-11 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether the character of the appellant's discharge from his period of military service from February 2, 1968, to August 10, 1970, constitutes a bar to benefits based on that period of service under laws administered by the Department of Veterans Affairs (VA), exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code (Section 2, Public Law 95-126). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a headache disorder. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and [redacted] ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had honorable active military service from February 1966 to January 1968. His discharge from a second period of active military service, from February 2, 1968, to August 10, 1970, was under other than honorable conditions. A February 1986 Administrative Decision by the RO determined that the appellant's second period of active military service was dishonorable service because of willful misconduct, and, therefore a bar to VA benefits, except for health care and related benefits authorized under Chapter 17, Title 38, United States Code. However, as the record does not show that the appellant was given notice regarding the finding by the February 1986 Administrative Decision that the characterization of his second period of service as dishonorable presented a bar to VA benefits based on the second period of service, the Board will treat the issue of whether there exists a bar to VA benefits based on the second period of service on a de novo basis. Service connection was denied for a headache disorder and a right knee disorder by a March 1986 rating decision that became final when the appellant did not file an appeal of the decision after receiving notification thereof later in March 1986. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) No. Little Rock, Arkansas, Regional Office (RO). At a February 1999 Regional Office hearing and again at an October 1999 Travel Board hearing, the appellant and his representative indicated that the disabilities for which the appellant seeks service connection began during, or are related to, his second period of active military service, from February 1968, to August 1970. Therefore, the Board will focus this decision on whether new and material evidence has been submitted to reopen claims for service connection for a headache disorder and a right knee disorder based on the appellant's first period of service, and whether service connection may be granted for PTSD, a headache disorder, and a right knee disorder based on the appellant's second period of service. FINDINGS OF FACT 1. The appellant served on active duty from February 11, 1966, to January 28, 1968, for which he received an honorable discharge, and from February 2, 1968, to August 10, 1970, for which he received an other than honorable discharge. 2. The appellant's service records reflect that he received approximately 13 to 15 nonjudicial punishments, that he was on absence without leave (AWOL) on several occasions including a period from January 19, 1970, to April 1, 1970, that he was given a Special Court-Martial on four occasions (July 28, 1968, January 9, 1969, March 22, 1969, and July 10, 1969), and that his bad time during his second period of service, due to AWOL and confinement, totaled almost 400 days. 3. The appellant's offenses during his second period of military service were willful and persistent and were not minor offenses offset by service which was otherwise honest, faithful, and meritorious. 4. The evidence does not establish that the appellant was insane at the time of commission of any of the inservice offenses. 5. Service connection was denied for a headache disorder and a right knee disorder by a March 1986 rating decision, which became final when the appellant did not file an appeal of the decision within one year after receiving notification of the decision in March 1986. 6. Because the evidence received since the March 1986 rating decision is merely cumulative of the evidence previously considered, it is not so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for a headache disorder, based on the appellant's period of military service from February 1966 to January 1968. 7. Because the evidence received since the March 1986 rating decision is merely cumulative of the evidence previously considered, it is not so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for a right knee disorder, based on the appellant's period of military service from February 1966 to January 1968. 8. PTSD is not shown to be related to the appellant's honorable period of active military service, from February 1966, to January 8, 1968. CONCLUSIONS OF LAW 1. The appellant's discharge from his second period of active military service (February 2, 1968, to August 10, 1970) was issued under dishonorable conditions for VA compensation purposes, thereby creating a bar to VA benefits based on that period of service, except for health care and related benefits authorized under Chapter 17, Title 38, United States Code. 38 U.S.C.A. §§ 101(18), 5107 (West 1991); 38 C.F.R. §§ 3.12, 3.354 (1999). 2. The evidence received by VA since the March 1986 rating decision is not new and material, and the claim for service connection for a headache disorder, based on the appellant's first period of military service, from February 1966 to January 1968, is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(d), 20.302(a) (1999). 3. The evidence received by VA since the March 1986 rating decision is not new and material, and the claim for service connection for a right knee disorder, based on the appellant's first period of military service, from February 1966 to January 1968, is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(d), 20.302(a) (1999). 4. PTSD was not incurred in a period of honorable active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record reflects that the appellant served on active military duty from February 1966 to January 1968 and received an honorable discharge. He then served a second period of active duty from February 2, 1968, to August 10, 1970, for which he received an other than honorable discharge. He argues that he has a headache disorder, a right knee disorder, and PTSD, and that each had its origin during his second period of service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime military service. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d). I. Character of Discharge The appellant asserts that he experienced emotional and psychiatric problems during his second period of military service, from February 2, 1968, to August 10, 1970, which rendered him insane at the times he committed the violations of the United States Code of Military Justice (UCMJ) that resulted in him receiving a discharge under other than honorable conditions. He points out that service medical records dated during his second period of service show treatment/findings of right knee disability and headaches. He also claims that his currently diagnosed PTSD is related to traumatic events he experienced while stationed in Korea during his second period of service. The record reflects that the appellant was given four Special Court-Martials during his second period of military service. At his first Special Court-Martial, on July 28, 1968, he was found guilty of violating Articles 86, 91, and 134 of the UCMJ, as a result of disobeying a lawful order on June 22, 1968, wrongly possessing a military pass on June 24, 1968, disobeying a lawful order and using disrespectful language to a superior Non-commissioned Officer on July 1, 1968, and failing to go to his appointed place of duty on July 2, 1968. He was sentenced to four months confinement at hard labor (suspended for four months) and required to forfeit $68.00 in pay for four months. At a second Special Court-Martial, on January 9, 1969, the appellant was found guilty of violating Article 86 of the UCMJ, as a result of failing to go to his appointed place of duty on December 25, 1968. He was sentenced to confinement at hard labor for one month (suspended until February 8, 1969) and required to forfeit $72.00 in pay for one month. A third Special Court-Martial, on March 22, 1969, found him guilty of violations of Articles 86, 89, 90, 95, and 134 of the UCMJ, as a result of being AWOL from February 2, 1969 to February 4, 1969, and from February 22, 1969, to February 24, 1969, showing disrespect and striking a superior Commissioned Office on February 4, 1969, and resisting being lawfully apprehended and wrongfully possessing a military pass on February 24, 1969. He received a sentence of six months confinement at hard labor and forfeiture of $72.00 in pay for six months. The appellant's fourth Special Court-Martial, on July 10, 1969, resulted in his being found guilty of being AWOL from January 19, 1970, to April 1, 1970, and he received a sentence of two months confinement at hard labor and forfeiture of $50.00 in pay for five months. An October 1969 service record indicates that the appellant had received approximately 13 to 15 Article 15 punishments (nonjudicial) under the UCMJ. There is also of record a request for discharge for unfitness executed by the appellant and witnessed by his defense counsel, a military attorney, in July 1970. The appellant indicated that he understood if the request was accepted he might be discharged under other than honorable conditions and furnished an undesirable discharge certificate. He stated he understood that as a result of the issuance of such a discharge he might be deprived of many or all Federal and State benefits and that he might be ineligible for many or all benefits administered by the VA. He stated that prior to completing the form he had been afforded the opportunity to consult with counsel. In July 1970, the appellant's commanding officer recommended that the request for discharge be approved. He stated that due to the appellant's chronic violation of the UCMJ, his dislike for the military service, his lack of self- motivation, and his negative attitude toward the military, he would probably continue to violate the UCMJ if not discharged. It was recommended that the appellant be separated from service as soon as possible with an undesirable discharge certificate. Service medical records include reports of psychiatric evaluations performed in July 1968 and October 1969, which indicated (1) that the appellant had an anti-social personality, (2) that he was mentally able to distinguish right from wrong and to adhere to right, and (3) that there was no mental defect warranting medical separation. There was no mention of the appellant being mentally defective, deranged, or abnormal either then or at the time of his misconduct. A June 1970 discharge examination noted normal psychiatric findings, and the appellant indicated on a medical history form that he did not have, and had not ever had, frequent trouble sleeping, depression, excessive worry, or nervous trouble of any sort. A July 1970 psychiatric evaluation report indicated that the appellant had a chronic, moderate, passive-aggressive personality. No mention was made of the appellant being mentally defective, deranged, or abnormal either then or at the time of his misconduct. The medical records from the appellant's second period of service also show that he was treated for headaches in December 1968 and for complaints of right knee pain in January 1969 and July 1969. A February 1986 Administrative Decision by the RO determined that the appellant's second period of active military service, from February 2, 1968, to August 10, 1970, was dishonorable service because of willful misconduct, and, therefore a bar to VA benefits, except for health care and related benefits authorized under Chapter 17, Title 38, United States Code. The appellant appeared at Regional Office hearings in May 1998 and February 1999, as well as at a Travel Board hearing in October 1999. He indicated that he had been insane at the time he committed his violations of the UCMJ. He and his representative both contended that he had a headache disorder, a right knee disorder, and PTSD that were related to his second period of military service. A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA benefits. 38 U.S.C.A. § 101(18). A discharge or release from service under certain conditions is considered to have been issued under dishonorable conditions unless it is found that the person was insane at the time of commission of the offenses causing such release or discharge. 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, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d). The appellant's service records reflect that he received numerous nonjudicial punishments and was sentenced to confinement at hard labor and to loss of military pay by four separate Special Court-Martials, during his second period of active military service. The record indicates that his periods of AWOL and confinement totaled almost 400 days. He was discharged administratively with an other than honorable discharge from his second period of service, which extended from February 2, 1968, to August 10, 1970. Although the appellant's emotional problems and the atmosphere of racial animosity in service may be considered as mitigating factors in his case, they do not absolve him of his responsibility for the several periods of absence without leave during service and the numerous nonjudicial and judicial punishments during his second period of military service. In the Board's judgment, the number of periods of absence without leave during the second period of service, along with the numerous other violations of the UCMJ during that time, constituted willful and persistent misconduct on the appellant's part, as contemplated under 38 C.F.R. § 3.12(d). Under the circumstances, it follows that the appellant's discharge from his second period of service was issued under dishonorable conditions and is a bar to the receipt of VA benefits, exclusive of health care under Chapter 17, Title 38, United States Code for service-connected conditions. It has been contended that the appellant's periods of absence without leave and his other violations of the UCMJ during his second period of service were the product of temporary insanity in that he obviously was under extreme emotional duress. The appellant has reported experiencing a number of stressors during his second period of service. He underwent psychiatric evaluations in July 1968 and October 1969, at which times he was considered to be mentally responsible and able to distinguish right from wrong and to be able to adhere to the right. The October 1969 examination report also indicated that he had the mental capacity to understand and participate in Board proceedings. On a medical history form completed at the time of his discharge examination in June 1970, he checked those blocks indicating that he did not have and had never had frequent trouble sleeping, depression or excessive worry or nervous trouble of any sort. On the medical examination report, the psychiatric evaluation was reported to be normal. He was also afforded a mental status evaluation in July 1970, in connection with his administrative discharge proceedings, and there was no mention of the presence of insanity at any time during his military service. The appellant was diagnosed as having antisocial behavior on service psychiatric examinations in July 1968 and October 1969, while a diagnosis of chronic, moderate passive-aggressive personality was diagnosed on the July 1970 psychiatric evaluation. Of record is an April 1999 private medical statement from J R. Moneypenny, Ph.D., in which he stated that the appellant's behavior during his time in Korea (his second period of service) and the problems he had that led up to and resulted in his bad discharge appear to meet the definition of insanity as set forth in 38 C.F.R. § 3.354. The psychologist listed the following reasons as the bases for his opinion: (1) military physicians gave the appellant a diagnosis of antisocial personality disorder; (2) the appellant's experiences in Korea were of sufficient severity to later led to PTSD; and (3) the general social climate in Korea at that time was characterized by a significant aggravating factor, namely, intense racial hatred and discrimination. 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 in the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply the definition in paragraph (a) of this section. 38 C.F.R. § 3.354(b). The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the insanity exception to veterans benefits bar for discharge under other than honorable conditions due to willful and persistent misconduct requires only that the insanity existed at the time of the commission of an offense leading to a person's discharge and not that the insanity must cause the misconduct. That is, there need not be a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145, 154 (1996). The Board is not persuaded by the opinion from the private psychologist that the appellant was insane at the time he committed the numerous violations of the UCMJ which resulted in his several nonjudicial and judicial punishments. The Board notes that the psychologist made no mention in a December 1998 medical statement of the appellant's insanity while stationed in Korea. Furthermore, the psychologist cites to the definition on antisocial personality disorder in DSM-IV in arguing that the military physicians, in diagnosing the appellant with antisocial personality disorder, were characterizing him as insane; however, DSM-IV was not promulgated at the time of the appellant's second period of military service. The Board also notes that the VA General Counsel (VAGC) has rendered an opinion that clearly is determinative of the issue as to whether the appellant's antisocial behavior in Korea can form a basis for showing that he was insane at the time. That opinion, VAOPGCPREC 20-97 (O.G.C. Prec. 20-97), found that behavior which is attributable to a personality disorder does not satisfy the definition of insanity in 38 C.F.R. § 3.354. VAGC opined that the term "became antisocial" in 38 C.F.R. § 3.354(a) refers to the development of behavior which is hostile or harmful to others in a manner which deviates sharply from the social norm and which is not attributable to a personality disorder. VAGC also pointed out in VAOPGCPREC 20-97 (O.G.C. Prec. 20-97) that the Court has held that the determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case. See Stringham v. Brown, 8 Vet. App. 445, 448 (1995); Zang v. Brown, 8 Vet. App. 246, 254 (1995). VAGC went on to state that case-by-case adjudication is particularly appropriate for addressing the extent by which an individual's behavior must deviate from his or her normal behavior. Thus, having reviewed that evidence presented, which includes the appellant's service medical records, the postservice VA medical records, the December 1998 and April 1999 opinion by the private psychologist, and the appellant's hearing testimony, the Board finds as a matter of fact that his conduct during his second period of military service were attributable to a personality disorder and that the much greater weight of the evidence shows that he was not insane when he committed those actions. II. New and Material Evidence The appellant's claims for service connection for a headache disorder and a right knee disorder were previously denied by a March 1986 rating decision that became final when he did not file a timely appeal of the decision after receiving notification thereof in March 1986. Except as otherwise provided, when a claim becomes final after an unappealed rating decision, the claim may not be thereafter reopened. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the claim is reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Veterans Appeals (Court) held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the holding by United States Court of Appeals for the Federal Circuit (Federal Circuit) in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): the Secretary must first determine whether new and material evidence has been presented, which under 38 C.F.R. § 3.156(a) means evidence not previously submitted to agency decision makers which satisfies the following requirements: it bears directly and substantially upon the specific matter under consideration; it is neither cumulative nor redundant; and, by itself or in connection with evidence previously assembled, it is so significant that it must be considered in order to fairly decide the merits of the claim; second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Secretary must reopen the claim and "evaluate the merits of the veteran's claim in light of all the evidence, both old and new" after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been submitted, the Board must review all of the evidence submitted since the last final denial of a claim. Evans v. Brown, 9 Vet. App 273 (1996). In this case, the appellant's claims for service connection for a headache disorder and a right knee disorder were last finally denied by the March 1986 rating decision. The evidence of record at the time of the March 1986 rating decision included the appellant's service medical records, which did not show any complaint or finding of a headache disorder or a right knee disorder during his first period of service, from February 1966 to January 1968. Also considered by the RO in March 1986 was a February 1986 Administrative Decision that determined the appellant's discharge from his second period of military service was under dishonorable conditions, which created a bar to VA benefits based on that period of service. Service connection was denied for a headache disorder and a right knee disorder by the March 1986 rating decision on the basis that neither of the conditions had been shown to have been present during the appellant's honorable period of military service, from February 1966 to January 1968. The evidence submitted since the March 1986 rating decision includes the following evidence: VA medical records, dated in the 1990's, that show treatment for psychiatric problems; lay statements from friends, dated in April and May 1998, that attest to the appellant's good character; and hearing transcripts of the appellant's Regional Office hearings in May 1998 and February 1999 and his Travel Board hearing in October 1999. While this evidence is new, in that it was not previously of record, it is cumulative of the evidence considered in March 1986 because it merely expresses the appellant's contention that he has headache and right knee disorders that began in during his second period of service. There has been no medical evidence presented since March 1986 that indicates the appellant has either a headache disorder or a right knee disorder that began during his first period of military service, which was his only honorable period of service. The Board notes that both the appellant and his representative indicated at the latter two hearings that the appellant's claimed headache and right knee disorders had their origins during his second period of service. The Board finds that the appellant has not presented any additional evidence so significant that it must be considered in order to fairly decide the merits of the claims for service connection for a headache disorder and a right knee disorder, based on his first period of military service. Accordingly, the claims for service connection for a headache disorder and a right knee disorder, based on the period of military service from February 1966 to January 1968, cannot be reopened, as the appellant has not submitted evidence that is both new and material. 38 U.S.C.A. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. III. Service Connection for a Headache Disorder, a Right Knee Disorder, and PTSD, based on Appellant's Second Period of Military Service The appellant argues that he has a headache disorder and a right knee disorder that are shown to have been manifested during his second period of military service, from February 1968, to August 1970, and that he has PTSD that developed as a result of traumatic events to which he was exposed during that second period of service. The Board is cognizant that service medical records pertaining to the appellant's second period of active military service show complaints for headaches and right knee disability, that reports of VA hospitalizations from September to October 1996 and from June to August 1997 include diagnoses of PTSD, and that the private psychologist reported a diagnosis of PTSD in his April 1999 medical statement, which he linked to events that took place during the appellant's second period of service. However, because the Board has determined that there exists a bar to the receipt of VA benefits, based on the appellant's second period of military service, from February 2, 1968, to August 10, 1970, except for health care under Chapter 17, Title 38, United States Code for service-connected conditions, the appellant's claims of entitlement to service connection for a headache disorder, a right knee disorder, and PTSD, on the basis of incurrence during his second period of military service must be denied. ORDER Entitlement to VA benefits based on the appellant's second period of active military service, from February 2, 1968, to August 10, 1970, are barred, except for the receipt of medical treatment for any service-connected condition. New and material evidence not having been submitted to reopen claims of entitlement to service connection for a headache disorder and a right knee disorder based on the appellant's first period of military service from, February 1966 to January 1968, these claims remain denied. Entitlement to service connection for PTSD as a result of the appellant's first period of military service, from February 1966 to January 1968, is denied. Entitlement to service connection for a headache disorder, a right knee disorder, and PTSD based on the appellant's second period of military service, from February 2, 1968, to August 10, 1970, is denied. M. W. GREENSTREET Member, Board of Veterans' Appeals