Bowling v. McDonough, 18-5263
| Decision Date | 29 March 2021 |
| Docket Number | 19-0602,18-5263 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Charlotte A. Bowling, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. and Kevin D. Appling, Appellant, |
Argued June 18, 2020
On Appeal from the Board of Veterans' Appeals
James D. Ridgway, with whom Glenn R. Bergmann was on the brief both of Bethesda, Maryland, for appellants.
Shekeba Morrad and Christopher K. Bader, with whom Richard J Hipolit, Acting General Counsel; Mary Ann Flynn, Chief Counsel; and Joan E. Moriarty, Deputy Chief Counsel, were on the brief, all of Washington, D.C., for appellee.
Before BARTLEY, Chief Judge, and MEREDITH and FALVEY, Judges.
Appellant Charlotte A. Bowling is the surviving spouse of veteran Charles E. Bowling. She appeals, through counsel, a July 31 2018, Board of Veterans' Appeals (Board) decision that determined, among other things, that Mr. Bowling's character of discharge for the period of service from November 3, 1965, to April 24, 1970, [1] was a bar to VA benefits for claims based on that service period. Bowling R. at 4-17.[2] Appellant Kevin D. Appling appeals, through counsel, an October 10, 2018, Board decision that determined that his character of discharge was a bar to VA benefits. Appling R. at 4-8. These appeals are timely, and the Court has jurisdiction to review the Board decisions pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Ms. Bowling's appeal was referred to a panel of the Court to address her argument that the definition of "insanity" in 38 C.F.R. § 3.354(a) is unconstitutional because it denies claimants due process of law. Bowling Brief (Br.) at 2, 4. Mr. Appling made an identical argument in his initial brief. Appling Br. at 2, 4.[3] In July 2019, the Court granted appellants' request that their appeals be consolidated for the purpose of addressing their common argument regarding the validity of § 3.354.
The Court holds that appellants have not met their burden to demonstrate that § 3.354(a) denies claimants due process or is constitutionally invalid. Therefore, the Court will affirm the October 10, 2018, Board decision concerning Mr. Appling. The Court will also affirm those portions of Ms. Bowling's July 31, 2018, Board decision that found that Mr. Bowling's character of discharge for his second service period was a bar to VA benefits, as well as, to the extent that the character of discharge decision is determinative, its decisions as to any of the 13 specifically claimed disabilities. The remainder of Ms. Bowling's appeal will be dismissed.
Additionally, there is a motion before the Court to "certify a class of veterans who have been or could yet be denied benefits based on VA's definition of 'insanity' as set forth in 38 C.F.R. § 3.354(a)." Motion for Class Certification (Motion) at 1. Because the Court accepts appellants' concession that their class action motion is moot if they do not prevail on the merits, the motion will be dismissed. However, if we were to decide the class action motion, we would deny it because appellants have not rebutted the presumption that a precedential decision would be adequate.
Appellants argue that the resolution of this appeal rests solely on the Court's evaluation of 38 C.F.R. § 3.354(a) and that the specific facts of their individual claims are irrelevant. See Appellants' Reply to Class Certification Motion at 14 (). Nonetheless, the Court will summarize the most salient facts for each appellant.
Mr. Bowling served on active duty in the U.S. Marine Corps from September 1961 to April 1970. Bowling R. at 2426, 5034. During his initial, honorable period of service, Mr. Bowling was absent without leave (AWOL) for at least 32 days across three separate occasions. Bowling R. at 2318, 5016, 5034. He was convicted by special court-martial for 2- and 27-day AWOL periods in November and December 1964, but allowed to reenlist. Bowling R. at 2339-40, 2426, 5017.
During his second period of service, Mr. Bowling served in the Republic of Vietnam from June to October 1967. Bowling R. at 2261. After returning from Vietnam, Mr. Bowling had several additional periods of AWOL, including approximately 10 days in March 1968, for which he was convicted at a summary court-martial, Bowling R. at 2290, and for 133 days from September 24, 1969, to February 4, 1970, Bowling R. at 2328, 4227. In March 1970, Mr. Bowling requested discharge for the good of the service, acknowledging that, under Article 86 of the Uniform Code of Military Justice (UCMJ), his period of AWOL from September 1969 to February 1970 was triable by court-martial and punishable by a dishonorable discharge. Bowling R. at 4227. He was discharged in April 1970 under conditions other than honorable. Bowling R. at 2426.
In March 2007, Mr. Bowling requested, among other things, that VA reconsider his character of service for his second period of service, which it had previously determined was dishonorable for the purpose of VA benefits. Bowling R. at 4566-68; see Bowling R. at 5010. During the development of his claim and subsequent appeal, he obtained medical opinions from two private clinical psychologists. Bowling R. at 2561-67 (April 2012), 4336-54 (May 2008). The first psychologist opined that Mr. Bowling had post-traumatic stress disorder (PTSD) related to his Vietnam service; that during his second period of service, his "mental state was such that he was not responsible for his actions at the time that he went AWOL;" that he "was unable to understand that he had other options than the one that he took;" and that "[a]vailable sources strongly indicate that he was [d]issociative at the time." Bowling R. at 4347-54. The second psychologist opined that Mr. Bowling was "experiencing a heightened level of [PTSD] symptoms" when he went AWOL in September 1969, and, as a result, "had diminished capacity regarding his decision[-]making ability." Bowling R. at 2566.
In October 2009, a VA examiner concurred that Mr. Bowling had PTSD related, in part, to his Vietnam service, R. at 3013, but opined that his AWOL event in September 1969 had "little connection" to "the distressing events of October 1967 in Vietnam." Bowling R. at 3017. Instead, the examiner attributed Mr. Bowling's AWOL events during his second period of service to his "excessive use of alcohol and associated frequent intoxication," as well as an underlying personality disorder resulting from childhood trauma. Id. at 3017.
In August 2012, the Board determined that the matter of Mr. Bowling's character of discharge from his second period of service should be reconsidered under 38 C.F.R. § 3.156(c) because additional relevant service records were associated with the claims file after the initial determination. Bowling R. at 2541. The Board also directed that, on remand, a VA examiner consider whether Mr. Bowling was insane for VA purposes, i.e., under 38 C.F.R. § 3.354(a), when he went AWOL in September 1969. Bowling R. at 2546-50. In May 2016, a VA examiner opined that there was "no indication that a psychiatric disability, other than alcohol abuse, existed at the time of the [September 1969] AWOL," and that it was "likely" that Mr. Bowling's excessive drinking, which began well before his deployment to Vietnam, significantly contributed to his lack of judgment. Bowling R. at 2251. Therefore, the VA examiner opined that Mr. Bowling's period of AWOL beginning in September 1969 was less likely than not the result of psychiatric disability consistent with VA's definition of insanity in § 3.354(a). R. at 2250.
Mr. Bowling died on August 21, 2016. Bowling R. at 1832. In December 2016, VA granted Ms. Bowling's request to substitute as the claimant in her husband's appeal. Bowling R. at 81.
In the July 31, 2018, Board decision on appeal, the Board found that "[t]he period of service from November 3, 1965[, ] to April 24, 1970[, ] is a bar to VA benefits." Bowling R. at 4. In so doing, the Board acknowledged the private psychologists' opinions that Mr. Bowling was experiencing psychiatric disabilities during service, but noted that "psychological disorders do not, on their own, constitute insanity." Bowling R. at 16. Instead, the Board relied on the negative May 2016 VA opinion, which it determined was most probative in part because it considered the regulatory definition of insanity for VA purposes. Id. Consequently, the Board declined to reopen seven previously denied claims and denied six other claims. Bowling R. at 4.
Mr. Appling served on active duty in the U.S. Army from October 1979 to May 1981. Appling R. at 249. In December 1980, he was convicted of several offenses at a special court-martial, Appling R. at 179-81, and was reassigned to a retraining brigade, see Appling R. at 163. While he was assigned to the retraining brigade, evaluators noted his continued difficulty getting along with others and provided counseling. Appling R. at 111, 114, 118, 122, 147, 158. He was reprimanded on numerous occasions for rule infractions and misconduct. Appling R. at 112-13, 116-17, 120-21, 125-28, 130-41, 143, 145-46, 148-51, 154-55, 160. In January 1981, Mr. Appling was disciplined under Article 15 of the UCMJ. Appling R. at 187-88.
In February 1981, Mr. Appling's superiors recommended discharge based on his continuing misbehavior. Appling R. at 124; see Appling R. at 183-84. A review board determined that Mr. Appling was capable of performing his military duty, but that the "[n]umerous discreditable incidents" of misconduct demonstrated his "unwillingness to meet...
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