Barela v. West

11 Vet. App. 280, 1998 U.S. Vet. App. LEXIS 870, 1998 WL 389026
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 14, 1998
DocketNo. 97-677
StatusPublished
Cited by5 cases

This text of 11 Vet. App. 280 (Barela v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barela v. West, 11 Vet. App. 280, 1998 U.S. Vet. App. LEXIS 870, 1998 WL 389026 (Cal. 1998).

Opinion

FARLEY, Judge:

This is an appeal from an April 3, 1997, decision of the Board of Veterans’ Appeals (BVA or Board) which denied entitlement to service connection for alcohol and drug abuse, claimed to be secondary to the appellant’s service-connected post-traumatic stress disorder (PTSD) with depression. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will reverse the decision of the BVA and remand the matter to the Board.

I.

The appellant, Jose Barela, served on active duty in the U.S. Army from September 1967 to September 1969. R. at 43. In April 1988, the appellant filed a claim for service connection for PTSD. R. at 71. There was no reference at that time to alcohol or drug abuse. Following a VA examination in which no history of drug or alcohol abuse was noted (R. at 84-91), service connection was established for PTSD in a March 1989 VA regional office (RO) decision. R. at 93. An October 1991 VA clinical note documented alcohol consumption (R. at 128) and a January 1992 discharge summary noted continuous alcohol abuse and episodic marijuana abuse (R. at 132). The issue of entitlement to service connection for drug and alcohol abuse secondary to PTSD was first raised in a January 1994 Notice of Disagreement (NOD) from a November 1993 RO decision which had addressed other issues. R. at 314. In a January 1995 VA examination, the only statement regarding drug or alcohol abuse was from a history provided by the appellant that he could no longer drink or dance as he had done in the past. R. at 475. The claim was eventually denied in a March 1995 RO decision which found that service connection could not be granted for the alcohol abuse secondary to PTSD because it had preexisted service. R. at 816-20. Service connection for drug abuse secondary to PTSD was also denied as it was considered “willful misconduct.” Id. An NOD was filed (R. at 851) and a Statement of the Case was issued (R. at 863-67). The appellant filed an appeal to the Board in April 1995. R. at 869.

In the decision on appeal, the Board stated that the payment of compensation for any disability that is the result of a veteran’s [282]*282abuse of alcohol or drugs is statutorily prohibited for claims filed after October 31, 1990. See 38 U.S.C. § 1110, as amended by Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, § 8052, 104 Stat. 1388, 1388-1351. In so doing, the Board referred to VA General Counsel Precedent Opinion 2-97. The Board noted 38 C.F.R. § 3.310(a), which provides that a “[disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” However, the Board found that since “the authority to compensate for [a] secondarily service-connected disability [under 38 C.F.R. § 3.310] derives from 38 U.S.C.[ ] § 1110, determinations regarding secondary service connection are also subject to the prohibition against payment for alcohol and substance abuse disabilities.” R. at 5. As a result, the Board concluded that “[s]ervice connection for alcohol and drug abuse, claimed as secondary to service-connected [PTSD] with depression, is prohibited by law.” R. at 4. This appeal followed.

II.

The Board framed the issue on appeal as “[entitlement to service connection for alcohol and drug abuse, claimed as secondary to service-connected [PTSD] with depression.” R. at 1. Purporting to follow this Court’s guidance in Sabonis v. Brown, 6 Vet.App. 426 (1994), the Board found as a threshold matter that the “law is dispositive with respect to the veteran’s claim.” R. at 3. In its “CONCLUSION OF LAW,” the Board specifically held that “[s]ervice connection for alcohol and drug abuse, claimed as secondary to service-connected [PTSD] with depression, is prohibited by law.” R. at 4. The law which the Board found to be “dispositive” was 38 U.S.C. § 1110. It is this legal conclusion, and the consequent denial of the appellant’s claim, which are presented for our review.

Section 1110 of title 38, U.S.Code provides, in pertinent part, as follows:

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in fine of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled ... compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.

38 U.S.C. § 1110 (emphasis added); see also 38 U.S.C. § 1131 (basic entitlement statute for disabilities sustained during peacetime which also prohibits the payment of compensation for disability resulting from alcohol or drug abuse). The term “compensation” is defined for purposes of title 38 as “a monthly payment made by the Secretary to a veteran because of service-connected disability, or to a surviving spouse, child, or parent of a veteran because of the service[-]eonnected death of the veteran occurring before January 1,1957.” 38 U.S.C. § 101(13).

In its statement of reasons or bases for its findings and conclusions, the Board focused with precision upon the issue of compensation for disability resulting from alcohol or substance abuse. Indeed, the Board specifically stated: “Accordingly, compensation is prohibited for disabilities which are the result of alcohol or substance abuse whether the claim is based on direct service connection or, under 38 C.F.R. § 3.310(a), on secondary service connection.” R. at 5. Had the Board stopped there, we would have been compelled to affirm its decision because that sentence is an accurate statement of the clear meaning of § 1110.

The appellant argues that this prohibition of § 1110 should not be construed as precluding compensation either for (1) disability due to abuse of alcohol or drugs which is secondarily service connected pursuant to 38 C.F.R. § 3.310(a) or (2) an increase in his rating for service-connected PTSD based on manifestations of PTSD symptomatology, i.e., alcohol or drug abuse. However, the language of 38 U.S.C. § 1110, as amended by the Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, § 8052, 104 Stat.

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Bluebook (online)
11 Vet. App. 280, 1998 U.S. Vet. App. LEXIS 870, 1998 WL 389026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barela-v-west-cavc-1998.