Case A26035914

ANTHONY C. SCIRÉ, JR · 2026 · Case ID: A26035914

GRANTED

Summary

The appellant, a U.S. Marine Corps veteran who served from November 2004 to March 2006, appealed the denial of VA compensation benefits due to an other than honorable (OTH) discharge. The Board found that the appellant's OTH discharge, initially deemed a bar to benefits due to willful and persistent misconduct, should not prevent compensation. The Board applied a "compelling circumstances exception" under recent regulatory amendments, citing the appellant's in-service military sexual trauma (MST) and resultant psychiatric disability, including PTSD and major depressive disorder, as contributing factors to her misconduct. Furthermore, the Board found that under prior regulations, the appellant met the definition of "insane" at the time of her offenses, which also lifts the bar to benefits. The appellant's service treatment records indicated a history of depression, alcohol abuse, suicidal ideation, and mental health hospitalizations during service, consistent with the findings of her treating psychiatrist, Dr. J.T.W., who linked her PTSD to MST. The Board granted service connection for PTSD due to MST, residuals of a back injury, sinusitis, bilateral hearing loss, and tinnitus, removing the discharge characterization as a bar to compensation. The Board's decision effectively grants the appellant's claims for compensation for these service-connected disabilities.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

220708-256498

Full Decision Text

Citation Nr: A26035914
Decision Date: 04/16/26 Archive Date: 04/16/26

DOCKET NO. 220708-256498
DATE: April 16, 2026

ORDER

The appellant's character of discharge from service does not constitute a bar to VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a); the appeal is granted.

Entitlement to service connection for VA compensation purposes for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) is granted.

Entitlement to service connection for VA compensation purposes for chronic residuals of a back injury is granted.

Entitlement to service connection for VA compensation purposes for a chronic respiratory condition claimed as sinusitis is granted.

Entitlement to service connection for VA compensation purposes for bilateral hearing loss is granted.

Entitlement to service connection for VA compensation purposes for tinnitus is granted.

FINDINGS OF FACT

1. The appellant was discharged from service under other than honorable (OTH) conditions by reason of willful and persistent misconduct.

2. Regarding the law effective June 25, 2024, compelling circumstances mitigate the appellant's in-service misconduct such that the character of her discharge is not a bar to the receipt of VA monetary benefits.

3. Regarding the law prior to June 25, 2024, the appellant was, under VA regulations, insane at the time of the misconduct for which she received her discharge, and the bar to receipt of VA monetary benefits is removed.

4. The AOJ has already awarded entitlement to service-connection for treatment purposes alone, for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), a residuals of a back injury, a respiratory condition claimed as sinusitis, a bilateral hearing loss disability, and tinnitus.

CONCLUSIONS OF LAW

1. The character of the appellant's discharge from service is not a bar to her receipt of VA monetary benefits under the old and amended criteria. 38 U.S.C. §§ 101(2), 5303; 38 C.F.R. §§ 3.1(d), 3.12, 3.354.

2. The criteria for entitlement to service-connection, for compensation purposes, for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), residuals of a back injury, a respiratory condition claimed as sinusitis, a bilateral hearing loss disability, and tinnitus, have been met. 38 U.S.C. §§ 101, 1110; 38 C.F.R. §§ 3.12, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty in the U.S. Marine Corps from November 2004 to March 2006.

The rating decision on appeal was issued in May 2022 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the July 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Hearing docket. A Board hearing was held on March 25, 2026.

Therefore, the Board may only consider the evidence of record at the time of the May 2022 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

As discussed below, the Board is granting the benefit sought on appeal. As such, there is no prejudice in issuing this decision before the close of the 90-day evidence submission window following the March 2026 Board hearing.

1. The appellant's character of discharge from service does not constitute a bar to VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a); the appeal is granted.

As noted above, the appellant served on active duty in the U.S. Marine Corps from November 2004 to March 2006. She received an other than honorable (OTH) discharge due in-service
), 20.801.

As noted above, the appellant served on active duty in the U.S. Marine Corps from November 2004 to March 2006. She received an other than honorable (OTH) discharge due in-service misconduct.

In an unappealed September 2011 decision, VA determined that the appellant's discharge was a bar to VA compensation benefits.

In May 2022, the appellant filed a Supplemental Claim requesting VA disability compensation for a back injury, major depression disorder, bilateral hearing loss and sinusitis. The AOJ issued the above-referenced May 2022 rating decision on appeal. In that decision, the AOJ granted entitlement to service connection for each claimed disability, but only for treatment purposes under 38 U.S.C. Chapter 17. In pertinent part, the AOJ expanded the scope of the appellant's hearing loss claim to recognize service connection for tinnitus, and expanded the scope of her depression claim to recognize service connection for a mental health condition diagnosed as major depressive disorder and PTSD due to MST. However, regarding compensation benefits, for each claimed disability, the AOJ explicitly stated that "Compensation is not payable for this condition."

The appellant filed a timely VA Form 10182 in July 2022, requesting VA compensation for each of the disabilities the AOJ deemed service-connected in its May 2022 rating decision. In an attached statement, the appellant argued that compensation was warranted because her discharge from the military was due to the disabling effects of her unreported MST, and resultant psychiatric disability.

A claim for veteran's disability benefits includes the element of "veteran status." See D'Amico v. West, 209 F.3d 1322, 1326 (2000). While certain persons administratively discharged under other than honorable conditions (OTH) may be eligible for service-connected healthcare benefits under 38 U.S.C. Chapter 17, as is the case here, in order to qualify for VA compensation benefits, a claimant or the party upon whose service the claimant predicates the claim must be a "veteran." Indeed, the AOJ has denied entitlement to compensation for this reason.

While the AOJ did not issue the appellant a formal administrative decision addressing veteran status with its February 2022 rating decision, it is clear that the appellant was aware of the prior bar to VA compensation benefits, that the AOJ specifically denied entitlement to compensation based on that bar, and that the appellant submitted argument with her 10182 in response to the February 2022 rating decision, requesting the Board to consider factors that should lift that bar. Given these circumstances, the Board finds that it has jurisdiction to address the issue of whether the character of the appellant's discharge is a bar to VA compensation benefits as a threshold matter in adjudicating entitlement to compensation for the claimed disabilities. Any failure on the part of the AOJ to issue notice to the appellant as to what may help establish veteran status is rendered moot by the fact that the Board can recognize such status based on the evidence already of record, and grant the benefits sought in full below.

For VA purposes, 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). A discharge or release for "willful and persistent misconduct" is considered to have been issued under dishonorable conditions for VA compensation purposes. See 38 C.F.R. § 3.12(d).

In its prior 2011 Administrative Decision, the AOJ determined that the appellant's OTH discharge was a bar to VA benefits based on a finding that certain in-service offenses included willful and persistent misconduct. The AOJ highlighted two offenses occurring the same day in September 2005 (Article 92, failure to obey an order or regulation for speeding; Article 111, drunken or reckless driving with a DWI citation by civilian
onorable. 38 C.F.R. § 3.12(a). A discharge or release for "willful and persistent misconduct" is considered to have been issued under dishonorable conditions for VA compensation purposes. See 38 C.F.R. § 3.12(d).

In its prior 2011 Administrative Decision, the AOJ determined that the appellant's OTH discharge was a bar to VA benefits based on a finding that certain in-service offenses included willful and persistent misconduct. The AOJ highlighted two offenses occurring the same day in September 2005 (Article 92, failure to obey an order or regulation for speeding; Article 111, drunken or reckless driving with a DWI citation by civilian highway patrol), and offenses occurring in November 2005 (both Article 134, for violating restriction and leaving the base).

With her May 2022 Supplemental Claim, the appellant submitted a May 2022 evaluation report from Dr. J.T.W. who diagnosed the appellant with PTSD (MST). After reviewing the appellant's service records and interviewing the appellant, Dr. J.T.W. determined that the appellant's PTSD was directly related to an in-service sexual assault while serving at Camp Lejeune, NC on active duty. Dr. J.T.W. indicated that the appellant suffered from depression, anxiety and panic attacks since her assault at Camp Lejeune, and specifically noted that her "military offenses" were relevant components of behavior and legal history related to her assault. Such included the appellant's "alcohol use in the military." See Dr. J.T.W.'s May 2022 report and clinical findings. Based largely on Dr. J.T.W.'s report, the AOJ determined that service-connection for PTSD due to MST was warranted (for treatment purposes alone) because the appellant was discharged with a mental health disability, and that evidence showed she was still suffering with a mental health condition that manifested while on active duty. Importantly, the VA is bound by these AOJ's findings in all future adjudications. See 38 C.F.R. § 3.104(c).

The appellant's service personnel records are not particularly thorough, lacking specific details about the nature of each identified offense, and how they factored into her discharge determinations. The appellant's service treatment records also appear to be missing key hospitalization records pertaining to mental health. Notwithstanding the fact that potentially relevant service records remain outstanding, there is sufficient evidence on file that can assist the Board with coming to an informed decision on the matters at issue.

Initially, the Board notes that the appellant's service treatment reports show that she entered service with no prior psychiatric disability. See an April 21, 2003 Report of Medical Examination. It was not until July 2005 when the appellant sought care for feeling "really sad for the past 3 months." She was diagnosed on July 5, 2005 with depression.

In a September 13, 2005 service treatment report, an examiner noted that the appellant was in a fight the day before, and that her depression was not improving. There is a November 17, 2005, Abbreviated Medical Evaluation Board Report on file noting that the appellant was being considered for limited duty until May 2006 due to increased major depression, with a need for treatment with medications and psychotherapy. The limitations from full duty would include no deployments, and no trainings with weapons or firearms.

A February 3, 2006 Chronological Record of Medical Care noted that the appellant had a history of depression and alcohol abuse, and was involved the night before in grand theft auto, alcohol abuse, car accidents, a police chase, jail and an emergency room visit. The appellant reported not remembering the incident, and wondering why she was there. The examiner indicated that the appellant's Command would like her to be admitted to the hospital. She was assessed as being alert, oriented to person and place, but not time, with slightly slowed speech. She was noted to be emotionally labile, crying inappropriately at times, with flat affect, poor eye contact and poor insight and judgment. The examiner assessed her with alcohol abuse, depression and being emotionally unstable and a threat to herself and others. She was then referred to mental health.

On March 6, 2006, a Discharge Note was added to the file, diagnosing major depressive disorder, recurrent, moderate borderline personality disorder with schizotypal features. There was a note that the appellant underwent prior psychiatric evaluations, crisis intervention, daily intensive group and individual psychotherapy. She was not permitted weapons access or field duty. The appellant completed a March 9, 2006 Report of Medical History just three days later, noting "yes" in response to questions about whether she had experienced nervous trouble, loss of memory, trouble sleeping, counseling, depression/worry, evaluation for a mental condition, and attempted suicide. In the notes below, she indicated she had two hospital admissions, sought mental health care in service, and attempted suicide on five occasions during service. She indicated that she had a manic-induced episode in September 2005. The physician indicated in the notes of the report that the appellant was recently released from mental health hospitalization and was in the psych ward. The physician indicated the appellant was being administratively separated due to alcohol abuse, and had previously obtained alcohol treatment as an inpatient, and was treated for depression.

The appellant has asked the Board to consider finding that her OTH discharge is not a bar to VA compensation benefits, asserting that the circumstances leading up to discharge, including her offenses characterized by a DWI and other violations, should be considered related to her in-service MST.

VA has already acknowledged and accepted that the appellant was a victim of MST, and that her current psychiatric disability is directly related to this in-service trauma. See the AOJ's May 2022 rating decision. The AOJ relied largely on the May 2022 assessment and opinion of Dr. J.T. W., who was of the impression after reviewing the appellant's file that there were sufficient markers to show that in-service MST occurred, citing to in-service alcohol abuse and other "military offenses" as related. See 38 C.F.R. § 3.304(f)(5) (noting that "VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred," and that such evidence may include evidence of behavior changes, to include substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause, or unexplained economic or social behavior changes). The appellant's service treatment records confirm that, after being first diagnosed with depression in July 2005, the appellant's mental health continued to deteriorate, requiring psychotherapy, restrictions from duties (including from weapons training) and mental health hospitalizations. The appellant admitted upon discharge that she had previously attempted suicide and had prior mental health inpatient treatment, as well as a manic-induced episode in September 2005. After considering the medical assessment of Dr. J.T.W. and the information available within the appellant's service records, the Board finds the evidence to be at least in approximate balance as to whether the appellant's in-service MST and resulting psychiatric disability were contributing factors to the military offenses leading to her discharge.

Turning to the question at issue, VA has no authority to alter the claimant's discharge classification, and the claimant's recourse for any change to her OTH discharge is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). That said, the laws and regulations governing eligibility for VA compensation, in certain circumstances, do permit VA to lift the bar to compensation benefits. In this case, as mentioned above, the bar was based on a finding that the appellant's offenses were the result of willful and persistent misconduct under 38 C.F.R. § 3.12(d).

Effective June 25, 2024, VA's regulations were amended to allow for a "compelling circumstances exception" to the bar to benefits for the type of misconduct at issue in this case-namely, willful and persistent misconduct under 38 C.F.R. § 3.12(d)(2). One key factor for VA's consideration in determining whether the bar to benefits for misconduct should or should not be applied is whether there was mental or cognitive impairment at the time of the misconduct, to include, but not limited to a clinical diagnosis (or evidence that could later be medically determined to demonstrate existence of) of PTSD and depression, among other psychiatric conditions. See 38 C.F.R. § 3.12(e)(2)(i). Another key factor for VA consideration is whether sexual abuse or assault could be a reason for misconduct. See 38 C.F.R
of misconduct at issue in this case-namely, willful and persistent misconduct under 38 C.F.R. § 3.12(d)(2). One key factor for VA's consideration in determining whether the bar to benefits for misconduct should or should not be applied is whether there was mental or cognitive impairment at the time of the misconduct, to include, but not limited to a clinical diagnosis (or evidence that could later be medically determined to demonstrate existence of) of PTSD and depression, among other psychiatric conditions. See 38 C.F.R. § 3.12(e)(2)(i). Another key factor for VA consideration is whether sexual abuse or assault could be a reason for misconduct. See 38 C.F.R. § 3.12(e)(2)(iv). As discussed above, the Board has found the medical and lay evidence sufficient to establish that the appellant's MST and resultant depression and PTSD were causal factors in the offenses that led to her unfavorable discharge. The Board finds that the "compelling circumstances" exceptions regarding PTSD and sexual assault apply in this case, and for this reason, the regulatory bar to VA compensation benefits can be lifted.

Importantly, the favorable amendments relied upon above were made effective June 25, 2024, and cannot be applied retroactively. The appellant's claim pre-dates June 25, 2024, and for the sake of completeness, the Board must consider whether the bar to VA compensation benefits exists for all times relevant to this appeal prior to June 25, 2024, utilizing only the former laws and regulations.

Under the former regulations, a finding that the appellant experienced military sexual trauma that led to the behavior that caused her discharge under OTH conditions is insufficient, alone, to conclude that the character of said discharge is not a bar to VA benefits. This is so because under 38 C.F.R. § 3.12, an appellant must be found "insane" before an other-than-honorable discharge may be found not to be a bar to VA compensation benefits.

Indeed, under both former and current 38 C.F.R. § 3.12(b), the bar to payment of VA benefits based on a discharge issued under dishonorable conditions is lifted if it is found that the person was insane at the time of committing the offense causing such discharge or release. Under 38 C.F.R. § 3.354(a), an insane person is defined for VA purposes 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 condition of insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145, 154 (1996). There still must be competent evidence establishing the appellant was insane at the time of the offenses leading to an other than honorable discharge. See Zang v. Brown, 8 Vet. App. 246, 254 (1995); see also Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (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).

The determination as to whether insanity as defined by VA under 38 C.F.R. § 3.354(a) existed at the time of the offenses leading to the appellant's discharge is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case.

Here, the appellant was specifically diagnosed with depressive disorder during service, and was treated for that condition during service from July 2005 to the time of her discharge. Her care included psychotherapy, restrictions from duties (including from weapons training) and mental health hospitalizations. The appellant stated at her March 2006 Report of History upon discharge she had attempted suicide during service, and had a manic-induced episode in September 2005. Dr. J.T.W. has linked the appellant's in-service alcohol abuse and her military offenses to her MST and resultant psychiatric disability, and the Board finds the opinion highly probative. VA has already acknowledged that an in-service MST occurred, and there is no indication in the record that the appellant suffered from a psychiatric
was specifically diagnosed with depressive disorder during service, and was treated for that condition during service from July 2005 to the time of her discharge. Her care included psychotherapy, restrictions from duties (including from weapons training) and mental health hospitalizations. The appellant stated at her March 2006 Report of History upon discharge she had attempted suicide during service, and had a manic-induced episode in September 2005. Dr. J.T.W. has linked the appellant's in-service alcohol abuse and her military offenses to her MST and resultant psychiatric disability, and the Board finds the opinion highly probative. VA has already acknowledged that an in-service MST occurred, and there is no indication in the record that the appellant suffered from a psychiatric condition prior to this trauma. Dr. J.T.W. has indicated that the appellant's symptoms have continued since the trauma to this day. His assessment can be reasonably construed as supportive of a finding that the appellant, due to disease, exhibited a "more or less prolonged deviation from her normal method of behavior" while her in-service offenses occurred.

Such evidence supports a finding that the appellant did, in fact, meet VA's definition of "insanity" during service, warranting a lift of the bar to VA compensation benefits for all times pertinent to this appeal.

(Continued on Next Page)

2. Entitlement to service connection for VA compensation purposes for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) is granted.

3. Entitlement to service connection for VA compensation purposes for chronic residuals of a back injury is granted.

4. Entitlement to service connection for VA compensation purposes for a chronic respiratory condition claimed as sinusitis is granted.

5. Entitlement to service connection for VA compensation purposes for bilateral hearing loss is granted.

6. Entitlement to service connection for VA compensation purposes for tinnitus is granted.

Based on the decision herein, the "veteran status" element of the appellant's May 2022 service-connection claim is established. In this case, the AOJ awarded entitlement to service-connection for her psychiatric, back, respiratory, hearing loss and tinnitus disabilities, for treatment purposes only, in the May 2022 rating decision based on a finding that such conditions were incurred in service. As the Board finds that the appellant's discharge no longer constitutes a bar to the award of VA disability compensation benefits, entitlement to service connection for compensation purposes for each of these disabilities is accordingly granted.

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board V. Chiappetta, 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.

Analyze in VA Law Explorer