Citation Nr: 0004833 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 95-39 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for pneumonia. 2. Entitlement to service connection for a back disability secondary to an inservice thoracotomy. 3. Entitlement to service connection for lung removal. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from April 1968 to March 1970. This matter came before the Board of Veterans' Appeals (Board) from a March 1994 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California that denied the veteran's claims of entitlement to service connection for pneumonia, a back disability secondary to an inservice thoracotomy, and for lung removal. A notice of disagreement was received in May 1994. A statement of the case was issued in September 1995. A substantive appeal was received from the veteran in September 1995. A hearing was held at the RO in January 1996 and before a member of the Board at the RO in December 1998. In June 1998, the veteran, through his representative, appears to have filed a claim for an increased (compensable) evaluation for his service-connected bilateral hearing loss, and for service connection for tinnitus. These claims are referred to the RO for appropriate action. FINDING OF FACT The medical evidence shows that while in service, the veteran, subsequent to taking Seconal and heroin, became comatose and as a result developed pneumonia and underwent an open thoracotomy. CONCLUSION OF LAW The claims for service connection for pneumonia, a back disability secondary to an inservice thoracotomy, and lung removal lack legal merit. 38 U.S.C.A. § §§ 101(16), 105(a), 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.1(m), 3.301(a), (c)(2), (d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran and his representative contend, in substance, that service connection is warranted for pneumonia, a back disability secondary to an inservice thoracotomy, and lung removal. The veteran's service medical records reflect that he was admitted to a U.S. Army Hospital, Fort McArthur (Fort McArthur), in July 1969 with a diagnosis of pneumonia, and that just prior to that admission the veteran had been hospitalized at a private hospital where he laid comatose for eighteen hours and developed right lower lobe pneumonia, probably on the basis of aspiration, after using Seconal, Amphetamine, and intravenous (I.V.) heroin. The service medical records further indicate that while at Fort McArthur a thoracentesis was performed. The veteran was transferred from Fort McArthur to the U.S. Naval Hospital in Long Beach, California in late July 1969, and a bronchoscopy was performed and purulent drainage was obtained from the right lower lobe and the right middle lobe bronchus. In early August 1969, a pulmonary abscess developed, requiring the performance of an open thoracotomy which drained the pulmonary abscess right lower lobe and the right middle lobe. In mid-August 1969, an abscess in the anterior right chest was drained. He was transferred back to Fort McArthur in September 1969. In August 1993, the veteran filed a claim of entitlement to service connection for pneumonia, a back disability secondary to the inservice thoracotomy (variously claimed as related to secondary scars, lung removal, and rib removal), and lung removal (he claims that part of his lung was removed during the thoracotomy). VA compensation and pension examinations were conducted in December 1993, and resulted in diagnoses of, among other things, the residuals of pleural effusion with abscess right, which included a thoracotomy scar and possible decortication. Examination of the veteran's back was essentially normal. When this case came before the Board in April 1999, it was sent out for a Veteran's Health Administration (VHA) opinion. The questions asked included the following: 1. Is it more likely than not that the pneumonia in service resulted from complications secondary to the Seconal and heroin as documented in the service hospitalization records ? 2. Is it more likely than not that the thoracotomy with removal of a segment of the 7th rib resulted from complications secondary to the Seconal and heroin as documented in the service hospitalization records ? 3. Based on your review of the service records, did the appellant have part of his right lung (necrotic lung tissue) removed ? 4. If the answer to question(3) is yes, is it more likely than not that the removal of the lung...resulted from complications secondary to the Seconal and heroin as documented in the service hospitalization records ? In June 1999, a response was received from a VA medical specialist (a Chief of Thoracic surgery); he stated that the answer to the first question was "yes," and explained that the veteran was comatose from using Seconal and heroin, and that comatose patients are at increased risk of aspirating. He noted that the veteran was seen at three different hospitals and that each examining physician indicated that he developed pneumonia as a result of aspirating when comatose. He noted that the surgeon who examined the veteran at Long Beach felt that the abscess was a complication of the pneumonia which was in turn a complication of the drug induced coma. The specialist also answered "yes" to the second question, explaining that the veteran developed an abscess involving the middle and lower lobes of the right lung, and that such abscesses are a common complication of pneumonia, which was a complication of the drug induced coma. The specialist answered "no" to the third question, pointing out that the infectious process which caused the lung abscess destroyed lung tissue and that the tissue came out when the abscess was drained. However, he noted, the veteran did not have a formal resection of lung tissue. The specialist did state that the lung tissue was rendered necrotic by the process which caused the abscess, which was a complication of the pneumonia which in turn was a complication of the drug induced coma. II. Analysis Generally, applicable law provides that service connection will be granted if it is shown a particular disease or injury resulting in disability was incurred or aggravated during active duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). A "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). The term "service-connected" means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in active miliary, naval, or air service. 38 U.S.C.A. § 101(16) (West 1991 & Supp. 1999). However, the law further provides that service connection may be granted, and compensation paid, only when a disability was incurred or aggravated in line of duty and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. §§ 3.1(m), 3.301(a) (1999). An injury or disease incurred during active miliary, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 1991). The regulations, in part, further provide that an injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to, or death of, the user. 38 C.F.R. § 3.301(d) (1999). In January 1997, a VA General Counsel opinion concluded that, under section 8052 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), Public Law No. 101-508, § 8052, 104 Stat. 1388, 1388-351, the law prohibits, effective for claims filed after October 31, 1990, the payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Furthermore, the payment of compensation is prohibited whether the claim is based upon direct service connection or, under 38 C.F.R. § 3.310(a), upon secondary service connection for a disability claimed as being due to a service-connected disorder, whether the claim is that the service-connected disorder caused the disability, or that it aggravated the disability. See VAOPGCPREC 2-97 (Jan. 16, 1997). In a subsequent opinion, the General Counsel concluded that additional disability, due to alcohol or drug abuse secondary to a service-connected disability, could be service connected pursuant to 38 C.F.R. § 3.310(a), but that compensation would not be payable for such additional disability. See VAOPGCPREC 2-98 (Feb. 10, 1998). See also Barela v. West, 11 Vet. App. 280 (1998) (holding that service connection for alcohol and drug abuse could be established; the statutes only prohibited the payment of compensation for disability due to alcohol or substance abuse, not a grant of service connection for such disability from which other, ancillary benefits could be awarded). In a more recent opinion, the General Counsel reiterated that 38 U.S.C.A. § 105(a), as amended by section 8052 of OBRA 1990, precludes direct service connection for a disability that is a result of a veteran's own abuse of alcohol or drugs (a substance abuse disability) for purposes of all VA benefits. See VAOPGCPREC 7-99 (June 9, 1999). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). The Board finds that the veteran's claims of service connection for pneumonia, a back disability secondary to an inservice thoracotomy, and lung removal must be denied. As noted above, the veteran filed a claim for service connection for these disabilities in August 1993. However, the medical evidence clearly shows that these disabilities resulted from the veteran's inservice overdose of Seconal and heroin in July 1969. Therefore, it may reasonably be concluded that these disabilities resulted from the veteran's abuse of drugs. The law clearly states that service connection may not be established on a direct basis for a disease or injury that results from a veteran's own willful misconduct, or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(a); VAOPGCPREC 7-99. Under the circumstances of this case, the law is dispositive and the Board has no alternative but to deny his claim. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for pneumonia, a back disability secondary to an inservice thoracotomy, and lung removal are denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals