VA regulations allow the VA to deny compensation benefits to veterans that that receive undesirable discharges if the VA makes a determination that the discharge is for willful and persistent misconduct. The VA has been blanketing finding such discharges prohibit the payment of veterans benefits, finding that almost any reason for discharge is willful and persistent misconduct. The VA also has illegally been holding that nothing short of insanity as a reason for the undesirable discharge will overcome this regulatory bar to benefits.
Our firm sucessfully argued in a recent single judge non-precedential case that the VA must consider the history, length, and meritoriousness of a veteran's service before it can find that there is a bar to benefits. Thus, in this case, a veterans history of combat service was important. The Court found that the Board of Veterans' Appeals (BVA) must consider whether a veterans combat history caused willful misconduct or not. Our client's discharge from service was because his Vietnam combat experiences and the resulting PTSD symptoms caused his AWOL and misbehavior in service. The veteran was a hard and capable sailor, but his PTSD symptoms caused the AWOL and misbehavior off-duty.
The Court said that VA could only bar benefits to a veteran if the misconduct was willful. The Board erred by not considering whether appellant's misconduct was willful or caused by PTSD. If the misconduct was due to PTSD, the discharge would not be due to "willful and persistent misconduct" and the VA could not bar benefits for the veterans service-incurred PTSD and Agent Orange related disease.
