Veteranclaims’s Blog

June 19, 2022

Newman v. McDonough, No. 18-2015(Decided June 16, 2022); absent without leave (AWOL); 38 C.F.R. § 3.12(c)(6) (2021); to have been insane at the time of the offense leading to discharge; 38 C.F.R. § 3.12(b); the standard the Board must use when determining whether a veteran qualifies for the insanity exception; the benefit of the doubt standard, codified at 38 U.S.C. § 5107(b), serves as the governing standard for evaluating whether a claimant meets VA’s definition of insanity; we state that—save perhaps in clear and
unmistakable evidence cases as discussed later—the benefit of the doubt standard governs in all
cases where VA must determine whether a claimant possesses veteran status;

Filed under: Uncategorized — veteranclaims @ 9:18 pm

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-2015
JOEL NEWMAN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided June 16, 2022)
Rose Carmen Goldberg, of San Francisco, California, for the appellant.
James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; James B. Cowden,
Deputy Chief Counsel; and Mark J. Villapando, all of Washington, D.C., were on the brief for the
appellee.
Before GREENBERG, TOTH, AND FALVEY, Judges.
PER CURIAM: Generally, former servicemembers are barred from receiving
compensation for service-connected disabilities if they were discharged because they were absent
without leave (AWOL) from their units for extended periods. 38 C.F.R. § 3.12(c)(6) (2021). There
is an exception, however, for persons whom VA deems, per its definition, to have been insane at
the time of the offense leading to discharge. 38 C.F.R. § 3.12(b). This case addresses the standard
the Board must use when determining whether a veteran qualifies for the insanity exception.
Joel Newman, Marshall Newman’s brother, appeals a 2018 Board decision that found
Marshall Newman ineligible for compensation benefits due to the character of his discharge.
During the pendency of his appeal, Marshall Newman passed away and now his brother Joel has
been substituted as appellant. Marshall Newman acknowledged that he received an unfavorable
discharge after he was AWOL from his Marine Corps unit during three intervals spanning more
than 9,000 days from 1973 until 1999; nonetheless, he contended that he was eligible for veterans
benefits because he was insane—as VA defines that term—when he first went AWOL. The Board
disagreed and found that the evidence did not support such a finding. The appellant argues that
the Board erred when it required his brother to prove his insanity by a preponderance of the
evidence.
2
Both sides agree that the benefit of the doubt standard, codified at 38 U.S.C. § 5107(b),
serves as the governing standard for evaluating whether a claimant meets VA’s definition of
insanity.
We brought this case to panel to acknowledge this and put to rest any question about the
standard of review when evaluating veteran status. Here, we state that—save perhaps in clear and
unmistakable evidence cases as discussed later—the benefit of the doubt standard governs in all
cases where VA must determine whether a claimant possesses veteran status
. Because the Board
failed to apply this standard here, we remand.
I. BACKGROUND
Marshall Newman joined the Marine Corps in 1973 and went AWOL from his unit on three
separate occasions. First, in 1974, he was convicted by civilian authorities of attempted
housebreaking after leaving his unit and was incarcerated. Upon release, he was convicted at courtmartial
for his absence; however, he sought to remain with the Marines and was retained on active
duty following his conviction. His second AWOL period occurred from January 1975 to June 1981. Shortly after returning, Mr. Newman ran off once again—his third AWOL period—and
remained apart from his Marine unit for 15 years. Upon returning in 1999, he was discharged under
other than honorable conditions.
In August 2012 Mr. Newman filed a compensation claim seeking service connection for a
nervous condition. The regional office (RO) found him ineligible for VA benefits because he was
discharged after having been AWOL for longer than 180 days and, therefore, was barred from
receiving compensation under VA regulations. He appealed, arguing that he was insane and
therefore exempt from the rule precluding compensation for servicemembers who were AWOL
for more than 180 days. See 38 C.F.R. § 3.12(b). The Board denied his claim in 2016 and he
appealed to this Court. In September 2017, Mr. Newman and the Secretary agreed to remand the
case for the Board to explain whether a medical opinion was necessary to adjudicate the claim.
In February 2018 the Board issued the decision currently on appeal, finding that a medical
opinion wasn’t necessary. The decision concluded that his discharge barred him from receiving
compensation benefits due to repeated absences from service. Next, it considered the two
applicable exceptions—”compelling circumstances” and insanity—and stated that Mr. Newman
needed to show by a preponderance of the evidence that he was insane at the time of the offenses
that resulted in discharge. The Board determined that Mr. Newman did not qualify for either
3
exception. Thus, the Board ruled that Mr. Newman’s discharge precluded him from establishing
veteran status and so he was not eligible for compensation benefits. This appeal followed.
II. ANALYSIS
A. The Legal Background of Veteran Status
Character of discharge (COD) determinations play an integral role in the veterans benefits
system as VA uses them to establish veteran status. See 38 U.S.C. § 101(2). Establishing veteran
status is a prerequisite for receiving disability compensation and it is the claimant’s burden to
establish veteran status. Donnellan v. Shinseki, 24 Vet.App. 167, 172 (2010).
Our caselaw has shifted over time about the governing standard required to prove veteran
status: Initially, we required potential claimants to prove veteran status—that is, eligibility for
compensation benefits—by a preponderance of the evidence. So, in Augilar v. Derwinski, 2
Vet.App. 21, 23 (1991), we ruled that a claimant seeking to reopen a claim that had been denied
for lack of veteran status had to first prove veteran status by a preponderance of the evidence.
Augilar endorsed the view that Congress had reserved the more lenient “benefit of the doubt”
standard for veterans and, thus, veteran status had to be proven before the standard could apply.
This view prevailed for nearly a decade and was reaffirmed in Laruan v. West, 11 Vet.App. 80,
84, 85 (1998), which held that “unless a claimant first carries the initial burden of establishing
status as a veteran or veteran status for the person upon whose military service the desired benefits
are predicated, the laws administered by the Secretary and the resources of the VA are not
applicable or available.”
The U.S. Court of Appeals for the Federal Circuit in D’Amico v. West, 209 F.3d 1322,
1326-27 (Fed. Cir. 2000), noted that this Court’s interpretation of 38 U.S.C. § 5108 (reopening
claims) could be traced to Aguilar and then overruled Laruan and its progeny, holding that the
new and material evidence requirement in section 5108 applied to the reopening of claims that
were disallowed for any reason, including because the claimant’s veteran status was not
established. It also found no support in the 1988 Veterans’ Benefits Improvement Act legislative
history for this Court’s interpretation of 38 U.S.C. § 5107 (duty to assist for well-grounded claims
and benefit of the doubt) and section 5108. Id. at 1327. But the Federal Circuit’s holding did not
fully settle the matter, as there remained uncertainty about whether it covered all veteran-status
4
questions or only attempts to reopen claims under section 5108 that had been denied for lack of
veteran status.
Since then, our caselaw has offered mixed messages about the reach of the benefit of the
doubt standard in evaluating veteran status. We applied the benefit of the doubt standard in cases
such as Frasure v. Principi, 18 Vet.App. 379, 385 (2004), Gardner v. Shinseki, 22 Vet.App. 415,
421 n. 5 (2009) (citing D’Amico in a footnote for the proposition that it “overrul[ed] Laruan . . .
and other cases holding that claimant[s] must show ‘veteran’ status by preponderance of evidence
before benefitting from statutes reserved for veterans”), and Donnellan, 24 Vet.App. at 175
(holding that “the benefit of the doubt standard applies to the question of veteran status,” where a
national guardsman sought benefits based on aggravation of a preexisting disability during active
duty for training (ACDUTRA)). But in Robertson v. Shinseki, 26 Vet.App. 169, 174 (2013), we
reverted to the preponderance of the evidence standard when reviewing a Board decision finding
no clear and unmistakable error (CUE) in a 1977 RO decision. Id. (citing Holmes v. Brown, 10
Vet.App. 38, 40 (1997), for the proposition that “[a] person seeking VA benefits must first establish
by a preponderance of the evidence that the service member, upon whose service such benefits are
predicated, has attained the status of veteran,” which had cited Aguilar for that holding). Several
of our cases since then have cited to Robertson and Holmes for the proposition that the
preponderance of the evidence standard is appropriate for assessing a claimant’s veteran status.
See, e.g., Key v. Wilkie, 2020 WL 4932368, at * 2 (Vet. App. Aug. 24, 2020); Cristino v.
McDonough, 2021 WL 747745, at * 3 (Vet. App. Feb. 26, 2021).
We called Mr. Newman’s case to panel to acknowledge this discrepancy and put to rest any
question about the standard of review when evaluating veteran status. We hold that the benefit of
the doubt standard governs in all cases1 where VA must determine whether a claimant possesses
veteran status. This is so because to find otherwise would create different standards for different
claimants. For example, in Donnellan, 24 Vet.App. at 175, the Court held that the benefit of the
doubt standard applied to claimants trying to show injury on ACDUTRA and in D’Amico, 209
F.3d at 1326-27, the Federal Circuit found that claimants whose benefits were denied because they
had not established veteran status could provide new and material evidence to reopen those claims,
which is an evidentiary advantage similar to the benefit of doubt standard. To now hold that the
preponderance of the evidence standard applies to Mr. Newman’s situation—that is, where a
1 Perhaps with the exception of CUE, as discussed below.
5
claimant was on active duty, went AWOL, and was trying to show that he met the insanity
exception—when precedent allows other claimants to satisfy less stringent burdens in pursuing
their claims seems illogical. Further, D’Amico, 209 F.3d at 1326-27, provides helpful guidance in
this matter given that the Federal Circuit noted that Lauran’s finding—that the evidentiary benefit
in section 5107 (benefit of the doubt) was reserved for those that had already met the initial burden
of establishing veteran status—was not supported by the legislative history it cited. Finally, the
Secretary concedes that the benefit of the doubt standard under section 5107 applies when
determining whether veteran status has been established. October 2021 Notice of Change in
Position at 1 (citing Donnellan, 24 Vet.App. at 174-75, and § 3.102, which provides that “[w]hen,
after careful consideration of all procurable and assembled data, a reasonable doubt arises
regarding service origin, the degree of disability, or any other point, such doubt will be resolved
in favor of the claimant”).
And, as to Robertson, we note the specific context of that case, which involved CUE. The
traditional practice has been to review CUE according to the caselaw extant at the time of the
underlying decision and so Robertson employed the preponderance of the evidence standard in its
CUE determination because that’s how veteran status was established at the time of the prior
decision at issue. See Augilar, 2 Vet.App. at 23. Of course, it must also be noted that the Supreme
Court is currently reviewing the propriety of the Federal Circuit’s caselaw holding that CUE
cannot exist where the adjudicator interprets the law according to precedent that existed at the time
of the prior decision but was later jettisoned. George v. McDonough, 991 F.3d 1227 (Fed. Cir.
2021), cert granted 142 S. Ct. 858 (Jan. 14, 2022). For now, we need only mention that CUE cases
can present complications that are not germane here.
B. Character of Discharge (COD) Determinations
With that background in mind, we now turn to the current law surrounding COD
determinations. VA and the Department of Defense (DoD) use different systems for classifying
and categorizing discharges, although their respective terminologies are similar enough to cause a
measure of confusion. The DoD issues five categories of discharge based on the character of a
person’s service: (1) honorable discharge; (2) general discharge; (3) other than honorable
discharge; (4) bad conduct discharge; and (5) dishonorable discharge. 53A Am. Jur. 2d Military
and Civil Defense § 159. The first three constitute administrative discharges, while the last two
are punitive discharges and only issue after a conviction at court-martial.
6
VA has a very different system for characterizing discharge from DoD. Significantly, VA
recognizes only two categories of discharge—dishonorable and other than dishonorable—when
determining eligibility for VA benefits. The reason VA uses the ungainly phrase “other than
dishonorable” is straightforward: Congress used this exact phrase to define the term “veteran,” for
purposes of eligibility for VA benefits. Specifically, 38 U.S.C. § 101(2) defines a veteran as any
“person who served in the active military, naval, air, or space service and who was discharged or
released under conditions other than dishonorable.”
DoD’s COD determination is not binding on VA, unless a veteran is discharged under
honorable conditions, in which case veteran status is assured. See 38 C.F.R. § 3.12(a). For all other
classifications, VA performs its own COD determinations by examining the underlying conduct
that led to a veteran’s discharge; in so doing, the Agency uses both statutory and regulatory
provisions to determine whether a veteran’s discharge was under conditions other than
dishonorable. See generally 38 U.S.C. § 5303; 38 C.F.R. § 3.12.
Because VA relied on § 3.12 to find that Mr. Newman could not establish veteran status,
our analysis will also focus on that regulation. Section 3.12, entitled Character of Discharge,
reiterates that a dishonorable discharge bars former servicemembers from receiving benefits.
Subsection (b) provides that “discharge or release from service under one of the conditions
specified in this section is a bar to the payment of benefits unless it is found that the person was
insane at the time of committing the offense causing such discharge or release or unless otherwise
specifically provided.” § 3.12(b). VA defines insanity, for COD determinations, as a person:
who, while not mentally defective or constitutionally psychopathic, . . . exhibits,
due to disease, a more or less prolonged deviation from his normal method of
behavior; or interferes with the peace of society; or who has so departed . . . from
the accepted standards of the community . . . 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) (2021).
And § 3.12(c)(6) bars the payment of benefits to former service members who were
discharged for refusing to perform their duties, were sentenced to be discharged by a general courtmartial,
or resigned a commission as an officer for the good of the service. It further explains that
benefits are unavailable for service members who were discharged for desertion or for being
AWOL for at least 180 days unless “there are compelling circumstances to warrant the prolonged
7
unauthorized absence.” § 3.12(c)(6)(i)-(iii) (listing factors for determining whether compelling
circumstances exist to justify the servicemember’s unauthorized absence).
Here, because the appellant’s arguments focus on the insanity exception, Appellant’s Brief
(Br.) at 9-26, we will also focus our analysis on that exception. And we note that the appellant has
the burden to show that his brother was insane at the time he committed the offense that led to his
discharge. See Struck v. Brown, 9 Vet.App. 145, 153-54 (1996). However, he does not have to
prove that insanity caused his brother to commit the act that led to his discharge. Id.
C. Application to Mr. Newman’s Case
Mr. Newman received an “other than honorable” discharge from the DoD. VA determined
that he was barred from receiving benefits under § 3.12(c)(6) because he went AWOL for a period
of greater than 180 days. For this reason, he could not receive benefits unless one of the two
exceptions applies: insanity under § 3.12(b) or compelling circumstances under § 3.12(c)(6). The
appellant claims that his brother’s 1974 arrest for housebreaking demonstrates that he was insane
at the time that he went AWOL. Further, he argues that the Board provided an inadequate statement
of reasons or bases to support its determination that this behavior did not constitute an
“interfere[ence] with the peace of society” as that phrase is used in VA’s insanity definition.
The appellant first asserts that the Board applied the wrong standard when it determined
that his brother was not insane when he went AWOL. Specifically, he contends that the Board
required the veteran to prove his insanity by a preponderance of the evidence when it should have
applied the more lenient “benefit of the doubt” standard. See Donnellan, 24 Vet.App. at 175
(explaining the difference between the standards).
While the Board acknowledged Donnellan’s holding “that the benefit of the doubt standard
applies to the question of veteran status,” it did not apply that standard when it addressed Mr.
Newman’s claim that he was insane at the time he went AWOL. See R. at 7. Instead, it required
Mr. Newman to “show by a preponderance of the evidence . . . that he was insane at the time of
the offenses which resulted in his discharge from service.” R. at 11 (citing Struck, 9 Vet.App. at
152-54). But, as stated, the benefit of the doubt standard, rather than the preponderance of the
evidence standard, is the correct standard when determining whether a claimant has established
veteran status. Remand is warranted where the Board applies an incorrect legal standard, so the
Court vacates the Board’s finding that Mr. Newman was not insane at any of the times that he was
8
AWOL or at any other times relevant to the character of his discharge, and remands the issue for
readjudication. See Delrio v. Wilkie, 32 Vet.App. 232, 239-40 (2019).
D. Reasons or Bases
While remand is warranted for the Board to apply section 5107’s benefit of the doubt
standard, the Court also concludes that the Board’s statement of reasons or bases is deficient with
respect to the finding that Mr. Newman was not insane. The Board must support any material
finding—which this clearly is, as his eligibility turns on it—with a statement of reasons or bases
that informs the claimant of the precise reasons for its decisions and is sufficiently detailed to
facilitate this Court’s review. Donnellan, 24 Vet.App. at 171.
The Board’s rationale focused exclusively on Mr. Newman’s mental health history,
concluding that the “evidence weighs against a finding that the Veteran has or has had a psychosis”
and that the weight of the evidence does not establish a “longstanding or repeated mental disorder.”
R. at 12. Yet, as discussed, VA’s definition of insanity does not focus solely on a claimant’s mental
health; neither of the Board’s rationales appears in that definition. See Beck v. West, 13 Vet.App.
535, 539 (2000). Thus, the Board should have discussed whether Mr. Newman’s 1974
housebreaking conviction constitutes evidence of “interfere[nce] with the peace of society,” which
is one of the standards set out in the relevant regulation. See § 3.54(a). Because it did not do so,
the Board’s statement is insufficient. See Donnellan, 24 Vet.App. at 171; cf. Gardner, 22 Vet.App.
at 420-21 (vacating and remanding a Board decision that addressed common law insanity rather
than VA’s regulatory definition).
On remand the Board should evaluate whether Mr. Newman’s 1974 housebreaking
conviction establishes that he was insane, under VA’s definition, using the benefit of the doubt
standard in section 5107(b), when he went AWOL.
Additionally, per Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009), the Board should
consider the relevance of in-service notations of nervousness, dizziness, and depression, as well as
difficulties breathing and sleeping, and that Mr. Newman reported that his “brain stays numb, out
of balance.” R. at 212 (November 1973); R. at 228-29 (June 1981); R. at 258-59, 553 (October
1999). The Board found that Mr. Newman had not submitted “any evidence whatsoever that he
was insane or had any mental health issues at the times in which he decided to absent himself from
the Marine Corps.” R. at 11 (citing to September 2013, April 2016, and January 2018 private
medical records). Later, when discussing whether he had a neurological issue, the Board
9
determined that September and November 1973 service treatment records showing a
hyperventilation diagnosis and breathing problems when Mr. Newman got nervous were
insufficient to show an in-service mental health problem or that he was insane at the time he went
AWOL in January 1974. R. at 13. But the Board does not explain why the in-service symptom
notations are insufficient to show a possible mental health problem. On remand, the Board should
adequately discuss those symptoms.
Finally, the Secretary concedes that remand is warranted because Mr. Newman had
identified private medical records and reported receiving Social Security benefits and the Board
did not discuss the relevance of those records or whether they had a reasonable possibility of
substantiating the claim. Secretary’s Br. at 4-6 (also stating that, although VA was not required to
obtain Mr. Newman’s court-martial transcript, the appellant was free on remand to explain to the
Board why this document was relevant). Thus, on remand the Board should consider the relevance
of those private medical records and any records related to Social Security benefits he received, as
well as Mr. Newman’s court-martial transcript.
III. CONCLUSION
Accordingly, the Board’s February 15, 2018, decision is VACATED and REMANDED for
readjudication consistent with this decision.

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