Citation Nr: 1310401 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-44 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for residuals of a coma, to include blackouts, memory loss, and inability to concentrate. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the benefits sought. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is claiming service connection for psychiatric disorder to include as residual to a coma during service, as well as for other claimed residuals of a coma during service to include blackouts, memory loss, and inability to concentrate. The RO denied the Veteran's claims on the basis that his claimed disorders resulted from abuse of alcohol or drugs, the result of the Veteran's own willful misconduct. In effect, the RO determined that during service drug abuse caused a coma episode, and psychiatric disorder or other residuals arising from the coma were thus the result of the drug abuse and the result of the Veteran's own willful misconduct. See 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c). Compensation shall not be paid if the disability was the result of a veteran's own willful misconduct or abuse of alcohol or drugs. Id. There can be service connection for compensation purposes for an alcohol abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. However, a veteran can only prevail if able to "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(2). An examination is necessary to clarify whether any present psychiatric disability, or other claimed residuals of a coma in service to include blackouts, memory loss, and inability to concentrate, were caused or aggravated by service and are not the result of willful misconduct. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records show that the Veteran was admitted for hospitalization in October 1975 after being found unresponsive in his room after a history of having had several beers prior to admission. On admission he was comatose and unresponsive to deep pain. Toxicology screen showed weakly positive for amphetamines and methamphetamines, and strongly positive for morphine and codeine. During hospitalization he received a psychiatric consultation with a recommendation that the Veteran may need counseling in the future by a drug counselor. After 12 days he was deemed fit for full duty and was discharged with an impression of drug overdose. A November 1975 consultation sheet, requesting a psychiatric consultation, contains a provisional diagnosis of anxiety secondary to drug overdose. The responsive psychiatry consultation report concluded with an assessment that the Veteran had no apparent mental illness, but some problems with motivation and attitude. The Veteran was seen three days later in November 1975 for complaints of dizziness after drinking a half pitcher of beer. The assessment was adverse effects of alcohol. The Veteran was seen in December 1975 with complaints of pain in the upper lumbar area. The record of treatment noted the Veteran had a spinal tap while hospitalized in October 1975. The report noted that the Veteran had been taking Valium since November 1975. He seemed to be drowsy and sleepy and had difficulty with comprehension and thinking. The impression was acute muscle spasm. A note two days later in December 1975 shows that the Veteran had been seen sometime earlier by a psychiatrist after his October 1975 hospitalization for drug overdose. The psychiatrist noted that the Veteran had been very agitated and anxious about what he thought had happened to him while he was comatose. The psychiatrist stated that the Veteran had been fantasizing that he had been sexually assaulted while comatose, as he did not understand why he had low back pain following his coma. The psychiatrist stated that he had explained to the Veteran that the Veteran had had a lumbar puncture performed during the hospital treatment, and the Veteran then appeared to have satisfactorily recovered from this fantasy. VA and private treatment records show treatment for substance abuse beginning in 1986, and subsequently for psychiatric diagnoses including schizophrenia. Service treatment record evidence shows no clear indication, either that a present psychiatric disorder, or other claimed residual, resulted from a coma due to abuse of alcohol or drugs in service; or on the contrary, that a psychiatric disorder was acquired in service and resulted in alcohol or drug abuse in service, which then resulted in a coma and residuals thereof. Contemporaneous treatment records in service indicate that any anxiety or other psychiatric-related symptoms occurred subsequent to the comatose state and hospitalization. There is no service treatment record evidence of psychiatric or other claimed abnormalities present before the episode of coma. Post service treatment records contain no accompanying opinions with respect to any etiology linked to service. A July 2011 opinion from Michael L. Cesta, M.D., FACP, however, concluded in part that the Veteran developed psychiatric illness on active-duty service leading to his discharge; and that the prodrome of the disease process of schizophrenia had already begun while in service and had nothing to do with the substance use disorder or the 1975 hospitalization, which was simply a symptom of his developing disease. Except for Dr. Cesta's opinion, there is no other medical evidence that is clearly supportive of the Veteran's claims. An examination is necessary to clarify whether any present psychiatric disability, or claimed residuals of a coma in service, to include blackouts, memory loss, and inability to concentrate, were caused or aggravated by service and are not the result of willful misconduct. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran must be given an opportunity to submit statements regarding the onset and continuity of relevant symptoms; and any additional pertinent treatment records not on file must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records pertinent to the claims for service connection for a psychiatric disability and for residuals of a coma, to include blackouts, memory loss, and inability to concentrate. 2. Notify the Veteran that he may submit statements from himself and others; describing their impressions regarding the onset and chronicity of symptoms of psychiatric disability or of residuals of a coma, to include blackouts, memory loss, and inability to concentrate since service. Provide the Veteran with an appropriate period of time to obtain such evidence. 3. After completion of the above, schedule the Veteran for a VA neuropsychiatric examination to determine the nature extent, onset and likely etiology of any psychiatric disorder and any residuals of a coma, to include blackouts, memory loss, and inability to concentrate, found to be present. The claims file must be made available to and reviewed by the examiner. The examiner is to elicit from the Veteran a history of psychiatric symptoms and residuals of coma to include blackouts, memory loss, or inability to concentrate, during and since service. For any psychiatric disorder or chronic condition claimed as residuals of a coma, to include blackouts, memory loss, and inability to concentrate, the examiner must provide a medical opinion as to whether it is at least as likely as not that any chronic condition diagnosed: (i) is related to or had its onset in service, or was aggravated, to include as due to a coma experienced therein; or (ii) is proximately due to or the result of a service- connected disability, as determined in (i); or (iii) constitutes aggravation of a disorder proximately due to or the result of a service-connected disability, as determined in (i). If the examiner finds that the coma incident, or any claimed disorder found to be present, is the result of an alcohol or drug abuse disability in service, then the examiner must opine as to whether it is at least as likely as not that such alcohol or drug abuse disability was acquired as secondary to (caused by), or as a symptom of, a psychiatric disorder that previously began in service. All opinions must be supported by a thorough rationale. The examiner must comment on the findings contained in the private medical statement by Dr. Cesta dated in July 2011. 4. Following any additional development deemed appropriate, readjudicate the Veteran's claims. If either of the benefits sought is not granted, an appropriate supplemental statement of the case must be issued. The Veteran and the representative must be afforded an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).