ALLEN v. PRINCIPI
237 F.3d 1368 (2001)
William F. ALLEN, Claimant-Appellant,
v.
Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
No. 99-7199.
United States Court of Appeals, Federal Circuit.
DECIDED February 2, 2001.
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.
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.
BackgroundAllen 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.