Zang v. Brown

8 Vet. App. 246, 1995 U.S. Vet. App. LEXIS 736, 1995 WL 583488
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 5, 1995
DocketNo. 93-1213
StatusPublished
Cited by24 cases

This text of 8 Vet. App. 246 (Zang v. Brown) 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
Zang v. Brown, 8 Vet. App. 246, 1995 U.S. Vet. App. LEXIS 736, 1995 WL 583488 (Cal. 1995).

Opinion

STEINBERG, Judge:

The appellant, Vietnam-era veteran Clifton W. Zang, appeals a September 3,1993, Board of Veterans’ Appeals (BVA or Board) decision denying entitlement to a permanent and total disability rating for pension purposes. For the reasons that follow, the Court will affirm the BVA decision.

I. Background

The veteran served on active duty in the United States Marine Corps from December 1968 to December 1972. Record (R.) at 15. The record on appeal does not contain service medical records. In August 1988, the veteran filed a claim with a Department of Veterans Affairs (VA) regional office (RO) for VA disability pension benefits based on total blindness. R. at 17-20. In September 1988, VA received notice from the Oregon Correctional Facility that the veteran was incarcerated with a life sentence for conviction of a felony committed on March 24,1983. See R. at 70.

A November 1988 VA Report of Accidental Injury, submitted by the veteran in support of his claim, stated that on March 24, 1983, [248]*248the veteran had received a gunshot wound to his head which “severed the optic nerve of both eyes, resulting in total blindness” and which caused “severe memory loss”. R. at 22-23. The form also stated that the veteran had been intoxicated at the time of the injury, that the persons responsible for the injury were unknown to him, and that police records from the Hillsboro, Oregon, police department “do not definitely establish a full account of the incident.” R. at 22.

A January 1989 letter from the Hillsboro police, in response to a VA inquiry, stated that the veteran had been “involved in a situation where he [had] shot and killed a girlfriend and her male companion, [had] left the scene of the shooting, [had driven] a short distance^] and shot himself in the head, causing blindness to himself.” R. at 25. Police department records noted that the veteran’s “only apparent injury was the bullet wound to the head”. R. at 41.

In February 1989, the RO, noting that a person is responsible for injuries or death which result “directly and immediately from indulgence in alcohol” and that willful misconduct is the “willingness to achieve a drunken state and while in this condition to undertake tasks for which unqualified physically or mentally by alcohol”, found that the veteran’s injuries occurred “as a result of willful misconduct” and therefore disallowed his claim. R. at 28, 30. The veteran filed a Notice of Disagreement (NOD) in March 1989. R. at 33. A June 1989 RO decision found that “the veteran’s act of attempted suicide, as it pertains to 38 C.F.R. [§] 3.302, is explainable and does not constitute unsoundness” in that “[i]t is reasonable to assume that the veteran attempted suicide in order to avoid the consequence of his act of double murder.” R. at 48-49. The RO concluded that “the veteran was sane at the time he attempted suicide.” R. at 49.

In August 1989, VA received private medical reports from May and June 1983 regarding the veteran’s mental state at the time of the shooting. R. at 51-60. A May 1983 report from a private physician, Dr. Colbach, stated that the veteran had “no history of treatment for any kind of mental illness” and that there was “no evidence of any serious mental illness, such as hallucinations or delusions.” R. at 53. The report included a diagnostic impression that the veteran was “suffering from traumatic blindness and depression” and that he had “some elements of a dependent personality, in that he seem[ed] always to have been a rather insecure individual with a strong need to be accepted and [had a] special sensitivity to rejection.” R. at 55. The report also stated the following:

At the time of the shooting on March 24, 1983,1 think that he was suffering from an Adjustment Disorder with Mixed Emotional Features. Essentially this means that he was having a strong emotional reaction, mixed with anxiety and depression, to the breakup of the relationship with [his girlfriend]. He was very upset_ With the loss of his work and the loss of the most significant factor in his love life, [the veteran] became very despondent. He increased his alcohol intake and, in the hours before the shooting, feverishly sought out [his girlfriend] to try to bring about some kind of peace between them.... His final act of attempting suicide, of course, is another very obvious indicator of the extreme state of this man’s emotions at the time of this shooting.
I think that he is able to aid and assist in his defense [of the crimes charged]. I don’t think that he has a defense based on a lack of substantial capacity.
I do think, however, that he meets the major elements for a manslaughter defense based on extreme emotional disturbance. ... From his point of reference I think this extreme emotional state is reasonable.

R, at 55-56.

A June 1983 report from Dr. Colbach stated that his opinions remained “essentially the same” as stated in his May 1983 report. R. at 58. The report noted that the veteran had a blood alcohol level of .102 at the time of his admission to St. Vincent’s Hospital in Oregon, “perhaps a bit more than an hour after the shooting”. R. at 59. The report also noted that Dr. Colbach thought that “the shooting took place primarily not because of the alcohol but because of [the veteran’s] extreme emotional state.” Ibid. In Septena-[249]*249ber 1989, VA received a March 1983 medical report from St. Vincent’s Hospital which included a diagnosis of “(1) 0.22 caliber rifle injury to the head, portal of entry — right temple; portal of exit — left temple; (2) [i]n-jury to both optic nerves, resulting in blindness; (3) [djamage to the temporal lobes and to the orbits as well as to the ethmoid and sphenoid sinuses.” R. at 62-63. The report stated: “He is totally blind.” R. at 62.

A November 1989 RO decision noted the reports from Dr. Colbach and confirmed the RO’s June 1989 decision that the evidence of record did not show that the veteran was insane at the time he attempted suicide. R. at 66. The veteran filed a second “NOD” in March 1990. See R. at 71. In his June 1990 VA Form 1-9 (Substantive Appeal to the BVA), he stated that he was mentally unsound at the time of the event which had left him totally blind, that he had arrived at his girlfriend’s house “just moments after she was killed”, was “in a state of shock”, and returned to his car where he “received the shot to the head which destroyed [his] eyesight”. R. at 74-75.

A November 1990 BVA decision remanded the matter to the RO to determine whether the defense of insanity or diminished capacity, or a related defense, had been presented at trial, and, if so, to report the outcome of that action; and to submit a copy of the trial transcript, the court’s judgment, and any psychiatric reports. The Board also remanded for the RO to readjudicate the issue without any consideration or application of 38 C.F.R. § 3.302, which it stated applied only in cases involving a claim for service connection. R. at 77-80.

In April 1991, the RO requested medical evidence from Dr. Colbach and evidence pertaining to the veteran’s defenses at trial, the outcome, the trial transcript, and reports from the veteran’s criminal trial attorney. R. at 82-83. Later that month, John Ray, Esq., the veteran’s former attorney, wrote to the RO that “the trial ...

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Bluebook (online)
8 Vet. App. 246, 1995 U.S. Vet. App. LEXIS 736, 1995 WL 583488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zang-v-brown-cavc-1995.