Allen v. Principi

• Decision Date: 02 February 2001
• Citation: 237 F.3d 1368
• Parties: (Fed. Cir. 2001) WILLIAM F. ALLEN, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee. 99-7199 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1368

237 F.3d 1368 (Fed. Cir. 2001)

WILLIAM F. ALLEN, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

99-7199

United States Court of Appeals for the Federal Circuit

DECIDED: February 2, 2001

Appealed from: United States Court of Appeals for Veterans Claims

Judge Jonathan R. Steinberg

Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for claimant-appellant. With him on the brief was Stephen L. Purcell.

Michael S. Dufault, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director, and Robert E. Kirschman, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel, and Michael J. Timinski, Attorney, Department of Veterans Affairs, of Washington, DC.

Before MAYER, Chief Judge, MICHEL and SCHALL, Circuit Judges.

MICHEL, Circuit Judge.

William F. Allen appeals the order of the United States Court of Appeals for Veterans Claims ("Veterans Court") vacating a November 26, 1997 Board of Veterans' Appeals ("Board" or "BVA") decision which denied increased disability compensation and remanded the case for further proceedings. In its one-judge order, the Veterans Court instructed the Board that its interpretation in Barela v. West, 11 Vet. App. 280 (1998), of 38 U.S.C. § 1110, as amended by § 8052(a)(2) of the Omnibus Budget Reconciliation Act of 1990 ("OBRA"), Pub. L. No. 101-508, 104 Stat. 1388, 1388-91, was "binding precedent" and barred recovery to the extent that Allen sought increased compensation for his alcohol abuse disability, either as secondarily service-connected or as evidence of the increased severity of his service-connected Post-Traumatic Stress Disorder ("PTSD"). We hold that we have jurisdiction over this remand order because the Veterans Court's interpretation of the statute will affect the remand proceeding, and our future review may be evaded. We further hold that § 1110, when read in light of its legislative history, does not preclude a veteran from receiving compensation for alcohol or drug-related disabilities arising secondarily from a service-connected disability, or from using alcohol or drug-related disabilities as evidence of the increased severity of a service-connected disability. Therefore, we reject the Veterans Court's statutory interpretation of § 1110 and to that extent reverse the court's order, and remand for proceedings in accordance with the interpretation of § 1110 as set forth herein. The part of the order remanding to the Board for proper application of the rating criteria is affirmed.

Background

Allen served on active duty in the United States Marine Corps from September 1965 to September 1969. Allen alleges that he suffers from PTSD resulting from his service. He also alleges that he suffers an alcohol abuse disability that arises as a symptom of his PTSD.

Allen seeks increased monetary compensation for both his PTSD disability and for his alcohol abuse disability. He argues that the existence of his alcohol abuse disability should be considered in determining his disability rating and his compensation level.

On August 18, 1993, the Boston, Massachusetts Veterans Administration Regional Office ("RO") of the Department of Veterans Affairs ("VA") granted Allen a 30 percent disability rating for service-connected PTSD effective from June 1992. In October 1994, Allen filed a claim for an increased rating. The RO issued a rating decision in June 1995, refusing an increase but confirming the 30 percent disability rating. On August 28, 1996, Dr. Victoria Russell conducted a VA Compensation and Pension Examination to determine the severity of Allen's PTSD and to ascertain whether there was a relationship between Allen's PTSD and his alcohol abuse. Dr. Russell wrote that "[t]he reason for [Allen's] alcohol admissions had to do with his rapidly accelerating symptoms of [PTSD]." The doctor diagnosed Allen with severe PTSD along with chronic alcohol abuse and dependence, in remission, as secondary to PTSD. In November 1996, the RO issued a rating confirming the 30 percent disability evaluation for PTSD and again declining an increased rating.

On June 6, 1997, however, following a psychiatric hospitalization, the RO increased Allen's disability rating to 50 percent, effective from October 13, 1994. The rating also included a temporary total disability rating under 38 C.F.R. § 4.29 for a period of 45 days prior to April 1, 1997. Although the RO considered Allen's prior hospitalizations in determining his rating, the RO did not consider the August 1996 Compensation and Pension Examination in evaluating whether Allen was entitled to an increased rating above 50 percent.

Allen appealed the denial of a rating higher than 50 percent to the Board. On November 26, 1997, the Board upheld the RO and denied a higher rating. The Board said that "alcohol abuse may not be service[-]connected, on either a direct or secondary basis, and impairment from non-service- connected substance abuse may not be considered when evaluating the severity of the service-connected PTSD." In order to receive a 70 percent rating, the next available step above 50 percent, the Board required Allen to demonstrate both occupational impairment and social impairment. In considering all of the evidence, the Board found that "the record . . . demonstrates that the veteran's employability has been seriously undermined by his history of alcohol abuse and dependence," but that Allen's PTSD was "not the only factor influencing his industrial [occupational] impairment." The Board also found that Allen failed to produce sufficient evidence to demonstrate social impairment. On March 25, 1998, Allen filed a timely appeal to the Veterans Court.

On July 12, 1999, the Veterans Court vacated the Board's decision and remanded for a further evidentiary hearing. Both Allen and the Secretary of Veterans Affairs ("the Secretary") agreed that a remand was required in light of the Veterans Court's opinion in Barela, which had been issued subsequent to the Board's November 26, 1997 decision. Barela held that § 1110 precludes a veteran from receiving compensation for disabilities due to alcohol or drug abuse. Barela, 11 Vet. App. at 283. The Barela court, however, added that § 1110 does not bar an award of service-connection for alcohol or drug abuse. Id. An award of service-connection would entitle a veteran to benefits such as educational assistance to a veteran's dependents, or housing loan benefits for the veteran. See 38 U.S.C. §§ 3510, 3501(a)(1), 3702(a)(1), 3702(2)(b) (1994). It would not entitle the veteran to any increase in disability compensation.

In Allen's case, the Veterans Court remanded in order for the Board to apply the court's interpretation of § 1110 as set forth in Barela. Allen had argued that Barela was "wrongly decided to the extent that it held that the law prohibits the payment by VA of compensation for alcohol abuse either on a secondary-service-connection basis or as evidence of an increase in the severity of a service-connected disability." The Veterans Court, however, rejected Allen's interpretation of § 1110 and stated that Barela was "binding precedent" to the extent that Allen "seeks compensation based either on alcohol abuse secondary to service-connected PTSD or `an increase in his rating for service-connected PTSD based on manifestations of PTSD symptomatology, i.e., alcohol or drug abuse.'" If, on remand, the Board found service-connection, Allen or his relatives could still receive educational or housing benefits under title 38. Allen could not, on remand, under the Veterans Court's interpretation of § 1110 in Allen's case and in Barela, recover additional disability compensation pursuant to an increase in his schedular rating due to his alcohol abuse disability secondary to his PTSD, or as evidence of the increased severity of his PTSD.

The Veterans Court also remanded for the Board to correctly apply the Secretary's rating criteria. The Court concluded that the Board erred in its application of Diagnostic Code 9411 ("DC 9411") by requiring Allen to exhibit both occupational [industrial] and social impairment. See 38 C.F.R. § 4.13 (1996); 38 C.F.R. § 4.30 (1996) (setting forth criteria for 100 percent rating); Johnson v. Brown, 7 Vet. App. 95, 99 (1994) (remanding to see if veteran met one criterion). On remand, the court ordered the Board to: 1) consider whether Allen meets any one of the schedular criteria for a 100 percent schedular rating for his service-connected PTSD; and if not: to 2) consider whether he meets any one criterion for a 70 percent schedular rating for his service-connected PTSD. The Veterans Court issued its order on August 3, 1999. Allen filed a timely notice of appeal to this court on September 22, 1999.

Decision

Allen believes that his alcohol abuse disability should be considered in determining his proper rating level for his PTSD disability which was already held to be service-connected. He only seeks disability compensation; he does not seek any non-pension benefits to which veterans and their relatives may be entitled to under title 38. Allen seeks additional disability compensation because of his alcohol abuse disability under two alternative theories. The first theory concerns whether Allen's alcohol abuse disability is secondary to his PTSD. The second theory is based on the premise that even if Allen's alcohol abuse disability is not secondarily service-connected, Allen should still be able to obtain an increase in his rating level by relying on the alcohol abuse as evidence of the increased severity of his PTSD.

A. Jurisdiction

The Veterans' Judicial Review Act, Pub. L. No. 100-687, Div. A, 102 Stat. 4105 (1988), grants this court jurisdiction to hear appeals from the Veterans Court. The Act was codified in ...