Supplemental Claim DEBACLE, Need help!

[shotgun]

Can someone please tell me this is normal for the processing of VA supplemental claims?

October 28, 2019 I submitted my supplemental claim with the locations of new and relevant evidence and four buddy statements if you will, the VA closed it on November 20,2019 with out explaining why. I submitted a VA Form 27-0820 to request an informal conference via telephone to explain why? While waiting for the call the claim magically re-opened and after the call with the idiot who's only answer was not eligible over and over. The claim closed again on December 13, 2019. 

So I waited for my missing mental health records to arrive to submit them on the next supplemental claim. March 10, 2020 I submitted it, the most easiest to read legal memo ever with OVERWHELMING evidence to prove insanity and settle this once and for all. March 23, 2020 they closed it without contacting me again, didn't even schedule a C&P. Like I needed one anyways because I've been seen by mental health doctors since 2013 for the same thing(So I think), plus I am currently under a VA Psychiatrist and she diagnosed me likewise. The claim magically again appeared on October 28, 2019. The very next day March 24, 2020 it was on VA.GOV and then on March 31, 2020 it was closed and finally they mailed an administrative decision outlining the evidence used in making this determination I'm not eligible because of my character of service(AWOL 180 days or more) . Well in the list of evidence used it had everything except my new evidence, the most important evidence. Furthermore this evidence proves 9 diagnoses, over 70 days in the WOMACK psych unit and the paperwork for a medical discharge from Fort Bragg. Also the last seven years of private medical records including my current VA treatment. 

 

Can someone explain this madness. By the way I have submitted my higher level review on April 1, 2020. Thanks any advice would be great.

 

[shotgun]

Brokensoldier244th,

Thanks for the response and yes your partially correct, C.F.R. 3.12 Character of Discharge, all of this statue applies especially 

(6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. This bar applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (h) of this section, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive Department of Veterans Affairs benefits. The term established basic eligibility to receive Department of Veterans Affairs benefits means either a Department of Veterans Affairs determination that an other than honorable discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under criteria other than those prescribed by one of the programs listed in paragraph (h) of this section. However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity (paragraph (b) of this section) or a decision of a board of correction of records established under 10 U.S.C. 1552 can estalish basic eligibility to receive Department of Veterans Affairs benefits. The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence.

(i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.

(ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began.

(iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive issue of absence rather than to procedures, technicalities or formalities.

[brokensoldier244th]

Who determined? You don't apply to VA for a VA home loan, you apply to a lender that then requests your certificate if you don't have it already. If it was the lender that said you were fine then they told you incorrectly. If it was VA then I hope you have the decision letter where they said that because you'll need it. There might be a cue or something in there, though I know little about CUEs.

 

https://cck-law.com/blog/military-discharge-status-and-what-it-means-for-your-entitlement-to-va-benefits/

[shotgun]

Berta,

 

Thanks for responding and to answer your first question, no they did not. They have not listed any of the new evidence. Your second question was what was the diagnosis for the medical discharge, it was schizoaffective disorder. Your third question, scan their denial letter with evidence list? I can but I will not because it’s not relevant to my question above. The question above is has this been seen before basically. Moreless has anyone seen such a blatant disregard for a claim, in addition they are just skipping through it as it seems to me. Your fourth question, did a lawyer or MH doctor write the memo? No I wrote the legal memo that was supplied with the VA Form 20-0995 (Supplemental Claim) and attached it to VA Form 21-4138 (Statement in support of claim), I layed it out exactly as defined by the US Court of Veterans Appeals format and references for each statue, regulation the whole nine yards. Furthermore the issue with the other guy your pertaining to, well that’s unfortunate he being untruthful and what not but that’s not my situation and he doesn’t have anything like this situation I assure you. As to looking up his case on the BVA well that’s out in left field, I know what options I have as to a CUE, I was asking for advice and feedback from folks that have seen this kind of debacle and what they did about it. I don’t need a investigation as to if I’m telling the truth or not about my discharge but maybe a point here and thereso I can put the pieces of this puzzle together. Thanks but obviously I have wasted my time here.

[Berta]

"As to looking up his case on the BVA well that’s out in left field, I know what options I have as to a CUE, I was asking for advice and feedback from folks that have seen this kind of debacle and what they did about it. I don’t need a investigation as to if I’m telling the truth or not about my discharge but maybe a point here and thereso I can put the pieces of this puzzle together. Thanks but obviously I have wasted my time here."

You misinterpreted what I posted-BVA decisions are public knowledge. No names of the claimant are revealed.

The best knowledge I ever got for CUE claims came from reading BVA decisions that awarded or denied CUE claims. But we cannot determine CUE unless we can see the decision. 

Yes  the 'other guy' was in a far different situation than you are.

I have been a volunteer advocate since 1984 ( worked at a VA Vet Center) and I believe what any vet states here.

The 'other guy' deliberately withheld critical info from all of us here in order to waste 'our ' time.

His BVA decision revealed exactly why he had a "bad paper" discharge.

You can disregard my advice- but please take the advice of others here:

Specifically the advice to  contact NVLSP, from Broncovet.

I am glad you know your "CUE Options," and hopefully will file that CUE as soon as you get the formal decision.

If they got the 21-4138 with the evidence you mentioned, they could even re-open the claim, if they formally denied it.But they probably won't.

I certainly believe that VA committed a CUE by not considering the probative evidence you mentioned .

Insanity has a specific detailed criteria within 38 CFR.I hope your 21-4138 statement covered that part of the criteria that applies to you.I helped a widow here prove that her husband had fit into that criteria.It was a far different situation however.

You have not wasted your time here. Please contact NVLSP, as Broncovet suggested.

 

 

 

 

 

 

 

 

[brokensoldier244th]

Unfortunately yes it happens sometimes. Is it normal? No tens of thousands of claims are processed just fine every year. 

As for the rest, generally when someone is asking for help one of the things they do is NOT trash on one of the oldest (by time) members of the forum that has won about a million CUEs . You say it's a waste of time to answer her questions, I say, as a person a whole lot closer to the VA processes than you are that all her questions are the  same thing that a Rvsr would be looking at. Maybe you had a crappy one, maybe there is something they misread. BUT, maybe your reluctance to provide basic relevant info about your case indicates it's not winnable, too. 

 

If you want help, then let us help. If youre going to be an ass about it, then good luck and godspeed. 

Edited April 16, 2020 by brokensoldier244th

[Berta]

Brokensoldier- I think Shotgun was just frustrated-and I understand that.

I re read his posts and fortunately he asked for a HLR and that might help.

He also applied to the ABCMR and that as a GOOD IDEA- we have had vets here, over the years with Bad paper, who never took any steps with BCMR or Discharge Review Board at all.

Both of those processes are long and detailed but can alter a bad discharge in a positive way.

He is very knowledgeable as to VA regulations, and said his Medical Discharge was for schizoaffective disorder.

That is a ratable disability:

https://www.va.gov/vetapp15/Files1/1504865.txt

VA could re characterize that diagnosis, as I think he had many,  but that was the cause of his Medical Discharge. 

The criteria for Insanity is here:

 

"The Board observes that there is no medical opinion of record to address whether the appellant was insane at the time of going AWOL, utilizing VA's definition of insane. Again, the Board reiterates that VA regulations provide that an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) 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). Thus, the Board finds that the appellant should be provided an appropriate VA mental disorders examination to obtain such an opinion, taking into account the standard necessary to determine if the appellant was insane."

This claim is on remand for that opinion.

https://www.va.gov/vetapp13/Files4/1332953.txt

Also the decision cites VAOPGCPREC 20-97 (May 22, 1997).

Here is that VAOGC Pres Op:

 

"Date:  May 22, 1997                         VAOPGCPREC 20-97

From:  General Counsel (022)

Subj:  Definition of Insanity in 38 C.F.R. § 3.354(a) -- 
       XXXXXXX, XXXX X.  XX XXX XX XXXX

  To:  Acting Chairman, Board of Veterans’ Appeals (01)

QUESTIONS PRESENTED:

a.  What is the meaning of the term “constitutionally psychopathic” as used in 38 C.F.R. § 3.354(a)?

b.  Does the definition of insanity in 38 C.F.R. § 3.354(a) exclude behavior which is due to a personality disorder or a substance-abuse disorder, except where a psychosis is also present?

c.  What are the intended parameters of the types of behavior which are defined as insanity in 38 C.F.R. § 3.354(a)?

(1)  Does the definition of insanity include behavior involving a minor episode, or episodes, of disorderly conduct or eccentricity, if the behavior is due to a disease?

(2)  How significantly must an individual’s behavior deviate from his or her “normal method of behavior” for the person to be considered insane under 38 C.F.R. § 3.354(a)?  Is this a purely subjective standard?

(3)  What is the meaning of the phrase “interferes with the peace of society,” and to what extent must an individual “interfere” with society’s peace to meet the definition of insane?

(4)  What is the meaning of the phrase “become antisocial” as used in 38 C.F.R. § 3.354(a)?  

(5)  Are the “accepted standards of the community to which by birth and education he belongs,” as referred to in 38 C.F.R. § 3.354(a), necessarily identical with the “social customs of the community in which he resides?”  If not, must an individual both deviate from the standards of his community of “birth and education” as well as be unable to adapt in order to further adjust “to the 
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social customs of the community in which he resides,” in order to meet the regulatory definition of insanity?  What evidence, if any, would be necessary to establish either or both such community standards?

COMMENTS:

1.  These issues arise in the context of a remand from the Court of Veterans Appeals (CVA) to the Board of Veterans’ Appeals (BVA) in the case of Cropper v. Brown, 6 Vet. App. 450 (1994).  During service, the appellant received four nonjudicial punishments resulting from marijuana use, absence without leave, drunk and disorderly conduct, and failure to go to the appointed place of duty.  As a result, the appellant was discharged with an other-than-honorable discharge “‘by reason of misconduct’” showing a pattern of “‘frequent involvement of a discreditable nature with civil or military authorities.’”  Id. at 451.  The appellant applied for veterans’ benefits, but the claim was denied.  On appeal, the BVA concluded that the appellant’s discharge precluded entitlement to veterans’ benefits.  The BVA also concluded that the evidence did not demonstrate that the appellant was insane at the time of commission of the offenses resulting in discharge.  The CVA vacated the BVA’s conclusion on the issue of insanity and remanded the case for consideration of a report of a post-service psychiatric examination.

2.  In order to qualify for veterans’ benefits, a for-
mer servicemember must demonstrate that he or she is a “veteran” within the meaning of the veterans’ benefit statutes.  A “veteran” is defined by 38 U.S.C. § 101(2) 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.”  A discharge from service under other-than-honorable conditions, issued because of willful and persistent misconduct, will be considered to have been issued under dishonorable conditions, 38 C.F.R. § 3.12(d)(4), and bars entitlement to veterans’ benefits.  However, entitlement is not barred if it is established that, at the time of the commission of the offense leading to a person’s discharge, the person was insane.  38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b).  A definition of insanity is provided at 38 C.F.R. § 3.354(a), and that definition is specifically made applicable to determinations pursuant to 
38 U.S.C. § 5303(b).  38 C.F.R. § 3.354(b).

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3.  The first question in the opinion request pertains to the meaning of the term “constitutionally psychopathic” in 38 C.F.R. § 3.354(a).  The definition of an insane person 
in section 3.354(a) does not include an individual who is constitutionally psychopathic.  According to Robert J. 
Campbell, M.D., Psychiatric Dictionary 154, 586 (6th ed. 1989), the term “psychopathic constitution” is synonymous with “psychopathic personality,” which is currently defined as “any behavioral dysfunction that is primary (idiopathic or nonorganic) and manifests itself in abnormally aggressive or seriously irresponsible conduct.”  The term “psychopathic personality” “has generally been understood to refer to a consistent, lifelong pattern of behavior conflicting with social norms.”  Boutilier v. Immigration & Naturalization Serv., 387 U.S. 118, 134 & n.6 (1967) (Douglas, J., dissenting); see also United States v. Flores-Rodriguez, 237 F.2d 405, 411 n.6 (2d Cir. 1956).  Dorland’s Illustrated Medical Dictionary, 371, 1383 (28th ed. 1994), defines “constitu-tional” as “affecting the whole constitution of the body; not local,” and “psychopathic” as “pertaining to antisocial behavior or antisocial personality disorder.”  Based upon these definitions, we conclude that the term “constitu-tionally psychopathic” in 38 C.F.R. § 354(a) refers to a condition which may be described as an antisocial personality disorder.  The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), at 645, states that “[t]he essential feature of Antisocial Personality Disorder is a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.”  See also The American Psychiatric Press Textbook of Psychiatry 712 (Hales, Robert E., M.D. et al. eds., 2d ed. 1994) (noting that the central characteristic of antisocial personality disorder is “a long-standing pattern of socially irresponsible behaviors that reflects a disregard for the rights of others”).

4.  The opinion request also inquires as to whether the definition of insanity in 38 C.F.R. § 3.354(a) excludes behavior resulting from a personality disorder or substance-abuse disorder.  The CVA has stated that, in order to constitute insanity for purposes of section 3.354(a), behavior must be “due to a disease.”  Zang v. Brown, 8 Vet. App. 246, 253 (1995).  In Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), the CVA held that 38 C.F.R. § 3.303(c), which states that a personality disorder is not a disease or injury for purposes of VA disability compensation, is a valid exercise of the authority granted to the Secretary of Veterans Affairs pursuant to 
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38 U.S.C. § 501.  Because a personality disorder is not a disease for VA compensation purposes, behavior which is attributable to a personality disorder does not satisfy the definition of insanity in section 3.354(a).

5.  With regard to substance-abuse disorders, we note initially that a determination as to whether a particular condition may be considered a disease for compensation purposes is essentially an adjudicative matter to be resolved by adjudicative personnel based on accepted medical principles.  VAOPGCPREC 82-90 (O.G.C. Prec. 82-90).  However, assuming for purposes of discussion that a substance-abuse disorder may be considered a disease for compensation purposes, we note that DSM-IV, at 182, states that “[t]he essential feature of Substance Abuse is a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances.”  Recurrent substance abuse may result in a failure to fulfill work, school, or home obligations, including repeated absences or poor performance, or legal problems such as arrests for substance-related disorderly conduct.  Id.  As discussed below, 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.  The conduct described in DSM-IV which is generally attributable to a substance-abuse disorder does not exemplify the gross nature of conduct which is generally considered to fall within the scope of the term insanity.  We therefore conclude that behavior which is attributable to a substance-abuse disorder does not constitute insane behavior under section 3.354(a).  

6.  The opinion request inquires regarding the parameters of the types of behavior which constitute insanity under 38 C.F.R. § 3.354(a).  The opinion request asks whether a minor episode, or episodes, of disorderly conduct or mere eccentricity, if due to a disease, may be considered insane behavior under section 3.354(a).  The question of insanity arises in numerous legal proceedings, and its meaning may vary according to the jurisdiction and the object or purpose of the proceeding.  However, in all contexts, the term indicates a condition involving conduct which deviates severely from the social norm.  Black’s Law Dictionary, at 794, states that “[t]he term is more or less synonymous with 
. . . psychosis,” which itself has been defined as “a mental disorder characterized by gross impairment in reality testing” or, in a more general sense, as a mental disorder in which “mental functioning is sufficiently impaired as to interfere grossly with the . . . capacity to meet the ordinary 
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demands of life.”  Dorland’s Illustrated Medical Dictionary at 1383.  According to Webster’s Third New International Dictionary 1168 (1981), “insanity” is a severe mental disorder, encompassing “such unsoundness of mind or lack of understanding as prevents one from having the mental capacity required by law to enter into a particular relationship, status, or transaction or as excuses one from criminal or civil responsibility.”    Section 3.354(a), which implements 38 U.S.C. § 5303(b) by providing a definition of insanity applicable to determinations under that statute, must be interpreted in light of the commonly accepted meaning of the term, in order to be consistent with the meaning which we may assume Congress intended in enacting that statute.  See, e.g., Pioneer Investment Servs. Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 388 (1993) (it is presumed that Congress intends the words in its enactments to carry their ordinary, contemporary, common meanings).

7.  The regulatory history of section 3.354(a) indicates that the Department of Veterans Affairs’ (VA) predecessors have, consistent with the commonly accepted meaning of the term, considered insanity to involve a severe form of mental disability.  The term “insanity” was apparently first defined for purposes of determining entitlement to veterans’ benefits in General Order No. 348 (April 20, 1926), issued by the United States Veterans’ Bureau, which stated that, to support a finding of insanity, the rating body must base its conclusions upon a diagnosis of psychosis, which was characterized as “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, and is thereby rendered incapable of managing himself or his affairs.”  General Order No. 348 was canceled by General 
Order No. 348-A (July 21, 1926), which stated that “a person will be deemed to be insane when he is mentally incapable of attending to his affairs.”  General Order No. 348-A was 
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canceled by General Order No. 348-C.  General Order 
No. 348-C (Oct. 26, 1927) contained a definition of an “insane person or lunatic” very similar to the definition of insanity in current 38 C.F.R. § 3.354(a).  However, General Order No. 348-C qualified the criterion relating to prolonged deviation from normal behavior with the proviso that the person must, as a result of such deviation, be “incap-able of managing his own affairs or transacting ordinary business,” a concept akin to the level of incompetency generally supporting appointment of a guardian.  See Black’s Law Dictionary 795 (6th ed. 1990).  The definition of an “insane person” in General Order No. 348-C also included a person “who is dangerous to himself, to others, or to property,” a concept similar to that employed in civil commitment proceedings in many jurisdictions.  See Black’s Law Dictionary at 795.  

8.  Applying the current regulation in Struck v. Brown, 9 Vet. App. 145, 152 (1996), the CVA stated that a doctor’s statements that “‘a main exacerbation of [the appellant’s] illness occurred during his military service,’” during which time he developed the signs and symptoms of schizophrenia, and that the appellant’s current “‘chronic and disabling schizophrenia was triggered by the stress-related military service,’” indicated that the appellant “may have been insane” when he absented himself without leave.    The CVA’s 
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discussion of the evidence in Struck is consistent with the above-referenced authorities, which indicate that a minor episode or episodes of disorderly conduct or mere eccentricity would not constitute insane behavior for purposes of 
38 C.F.R. § 3.354(a).  

9.  The opinion request also asks how significantly an individual’s behavior must deviate from his or her “normal method of behavior” in order to meet the regulatory definition of insanity.  The determination as to whether a particular behavior constitutes insanity for purposes of section 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, 8 Vet. App. at 254.  We believe that case-by-case adjudication is particularly appropriate for assessing the extent by which an individual’s behavior must deviate from his or her normal behavior because the behavior which may constitute insanity in section 3.354(a) may be so “varying in nature as to be impossible of capture within the boundaries of a general rule.”  Sewell Coal Co. v. Federal Mine Safety & Health Review Comm’n, 686 F.2d 1066, 1070 (4th Cir. 1982); accord Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 909 (5th Cir. 1983); see also Hunter v. Director, Office of Workers’ Compensation Programs, 803 F.2d 800, 803 (4th Cir. 1986) (where regulations did not define the term “chronic disease of the lung,” it was not unreasonable to require claimants to establish the chronic nature of their lung cancer on a case-by-case basis).  However, the issue of the extent to which an individual’s behavior deviates from his or her normal method of behavior should be evaluated in light of the principles discussed above governing the gross nature of conduct which is generally considered to fall within the scope of the term “insanity.”

10.  The next question pertains to the meaning of the phrase “interferes with the peace of society.”  The regulatory history provides no authoritative guidance regarding the meaning of this phrase.  However, the word “peace” has been described as “‘that state and sense of safety which is necessary to the comfort and happiness of every citizen, and which government is instituted to secure.’”  State v. Van Allen, 102 A.2d 526, 527 (Conn. 1954) (quoting Malley v. Lane, 115 A. 674, 676 (Conn. 1921).  The phrase “peace of society” has been used in the context of legal principles which provide order to society.  See Marshall v. Baltimore & O.R.R., 57 U.S. (16 How.) 314, 325 (1853) (discussing neces
sity of stare decisis in cases affecting retroactively the 

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courts’ jurisdiction); Landsdale v. Smith, 106 U.S. 391, 394 (1882) (preservation of peace of society by doctrine of laches); Rozell v. Rozell, 8 N.Y.S.2d 901, 903 (N.Y. App. Div.), aff’d, 22 N.E.2d 254 (N.Y. 1939) (inability of minor child to claim damages for personal injuries inflicted by parents).  Thus, the phrase “interferes with the peace of society” in 38 C.F.R. § 3.354(a) may be read as referring to behavior which disrupts the legal order of society.  See also “breach of the peace,” which is a generic term including “all violations of public peace, order, or decorum,” and which may consist of acts of public turbulence or indecorum, invasion of the security and protection which the laws affords, violation of a law enacted to preserve peace and good order, and acts which tend to excite violent resentment or create public tumult, or provoke, excite, or incite others to break the peace.  11 C.J.S. Breach of the Peace §§ 2, 4 (1995).  

11.  With regard to the extent to which an individual must interfere with the peace of society in order to be considered insane, we believe that this is a question which may be resolved through adjudication on a case-by-case basis.  Hunter, 803 F.2d at 803.  However, we note that the interference with the peace of society, to be considered evidence of insanity within the meaning of 38 C.F.R. § 3.354(a), must be due to disease.  Zang, 8 Vet. App. at 253.  Further, the extent of the interference necessary to establish insanity must be evaluated in light of the above-referenced discussion of the gross nature of the conduct normally associated with that term. 

12.  The request for opinion next inquires as to the meaning of the phrase “become antisocial” as used in 38 C.F.R. § 3.354(a).  The term “antisocial” is defined by Dorland’s Illustrated Medical Dictionary, at 100, as “behavior that violates the rights of others or is criminal.”  According 
to Webster’s Ninth New Collegiate Dictionary 93 (1990), “anti-social” refers to behavior which is “hostile or 
harmful to organized society,” especially behavior which “deviat[es] sharply from the social norm.”  Examples of antisocial behavior provided in DSM-IV, at 649-50, include:  (1) failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest; (2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and aggressiveness, as indicated by repeated physical fights or assaults; (5) reck-
less disregard for safety of self or others; (6) consistent 
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irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations; and (7) lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.  

13.  The term “become” has been defined as meaning “to 
come into existence” or “to undergo change or development.”  Webster’s Ninth New Collegiate Dictionary at 139.  Use of this term indicates that the regulation was intended to refer to a course of conduct representing a departure from 
an individual’s normal pattern of behavior.  Thus, the reference to “become antisocial” would not encompass behavior 
attributable to a personality disorder, which involves 
“a lifelong pattern of action or behavior,” 38 C.F.R. § 3.303(c), and which is recognized as a disorder having its onset in childhood or adolescence and persisting in a stable form over time.  DSM-IV at 632.  In view of the foregoing, we conclude that the phrase “become antisocial” as used 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.

14.  The final issue raised by the request for opinion concerns the reference in 38 C.F.R. § 3.354(a) to such departure “from the accepted standards of the community to which by birth and education [a person] belongs” so as to render the person unable to adapt “to the social customs of the community in which he resides.”  The opinion request asks whether “the accepted standards of the community to which by birth and education [a person] belongs” are identical in meaning to “the social customs of the community in which he resides.”  Each part of a regulation must be construed so that effect is given, if possible, to every word and clause, so that no part will be inoperative or superfluous.  2A Norman J. Singer, Sutherland Statutory Construction § 46.06 (5th ed. 1992); Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F.3d 28, 31 (3d Cir. 1995); Sekula v. Federal Deposit Ins. Corp., 39 F.3d 448, 454-55 (3d Cir. 1994).  In order to give effect to the two phrases at issue, they must be considered to refer to different standards for evaluating an individual’s behavior.  Under any other interpretation, one of the two phrases would be rendered superfluous and would collapse into one step what is clearly meant to be a two-step process under section 3.354(a).  See Sekula, 39 F.3d at 455.  Accordingly in order to be considered insane under the departure-from-accepted-standards criteria of section 3.354(a), a person must both deviate from the 
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accepted standards of the community to which he or she belongs by birth and education and be unable to adjust to the social customs of the community in which he or she resides.

15.  With regard to the phrase “the accepted standards of the community to which by birth and education [a person] belongs,” the word “birth” refers to a “state resulting from being born . . . at a particular time or place or into a particular kinship.”  Webster’s Third New International Dictionary 221 (1981).  In light of this definition, the phrase in question appears to refer to an individual’s ethnic and cultural background and to the level of education completed by the individual.  Regarding the evidence which would be necessary to establish this standard, we note that DSM-IV includes information specifically related to cultural considerations to assist in application of psychiatric diagnostic criteria, including a discussion of cultural variations in the clinical presentation of disorders, an outline for cultural formulation designed to assist in evaluating and reporting the impact of the individual’s cultural context, and a glossary of culture-bound syndromes.  See DSM-IV 
at xxiv.  The cultural formulation involves systematic description of an individual’s cultural and social reference group.  Id. at 843. 

16.  The second standard, “the social customs of the community in which [a person] resides,” does not take into account the background of any particular person but rather embodies the common understanding in a community concerning social norms.  This standard requires assessment of whether an individual is able to conform his or her behavior to 
the conduct required of an average person in a particular community.  See generally Estate of Burgess v. Peterson, 537 N.W.2d 115, 119-20 (Wis. Ct. App.), review denied, 
540 N.W.2d 202 (1995); Estate of Mild v. Scheuer, 136 A.2d 875, 882 (N.J. 1957)(conduct measured by an ordinary-person standard, without reference to an individual’s intellect and education).  We note that one source of evidence of the social customs of the community in which an individual resides is the laws and judicial decisions of the particular jurisdiction, such as those dealing with what constitutes a breach of the peace.  In view of the foregoing, the reference to “the accepted standards of the community to which by birth and education” an individual belongs requires consideration of evidence of the cultural and ethnic traits and degree of education possessed by a particular individual, while the reference to “the social customs of the community” 
in which an individual resides, requires consideration of 

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evidence of an “average person” standard derived from the contemporary values of the community at large.

HELD:

a.  The term “constitutionally psychopathic” in 38 C.F.R. § 3.354(a) refers to a condition which may be described as an antisocial personality disorder.

b.  Behavior which is attributable to a personality dis-order does not satisfy the definition of insanity in section 3.354(a).  Assuming that a particular substance-abuse disorder is a disease for disability compensation purposes, behavior which is generally attributable to such disorders does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall with the scope of the term insanity and therefore does not constitute insane behavior under section 3.354(a).

c.(1)  Behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in section 3.354(a).

c.(2)  Determination of the extent to which an individual’s behavior must deviate from his or her normal method of behavior for purposes of section 3.354(a) may best be resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity.

c.(3)  The phrase “interferes with the peace of society” 
in 38 C.F.R. § 3.354(a) refers to behavior which disrupts the legal order of society.  Determination of the extent to which an individual must interfere with the peace of so-ciety so as to be considered insane for purposes of section 3.354(a) may be resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity.

c.(4)  The term “become 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.

c.(5)  Reference in 38 C.F.R. § 3.354(a) to “accepted standards of the community to which by birth and education” an individual belongs requires consideration of an individual’s ethnic and cultural background and level of education.  The 

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regulatory reference to “social customs of the community” in which an individual resides requires assessment of an 
individual’s conduct with regard to the contemporary values and customs of the community at large.

Mary Lou Keener"

https://www.va.gov/ogc/docs/1997/Prc20-97.doc