**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

**[No. 98-259]{.smallcaps}**

**[Fred E. Davis, Appellant,]{.smallcaps}**

**[v.]{.smallcaps}**

**[Anthony J. Principi,]{.smallcaps}**

**[Secretary of Veterans Affairs,
Appellee]{.smallcaps}****[.]{.smallcaps}**

**On Appeal from the Board of Veterans\' Appeals**

**(Argued January 13, 2003 Decided March 19, 2003 )**

***Sandra Booth*, of Columbus, Ohio, for the appellant.**

***Mary Ann Flynn*, with whom *John H. Thompson*, Acting General
Counsel, and *Ron Garvin*, Assistant General Counsel, were on the
pleadings, all of Washington, D.C., for the appellee.**

**Before KRAMER, *Chief Judge*, and FARLEY and GREENE, *Judges*.**

**GREENE, *Judge*: Veteran Fred E. Davis appealed, through counsel, a
December 3, 1997, Board of Veterans\' Appeals (Board) decision that
denied his claim for service connection for substance abuse as lacking
legal merit. The matter now returns to the Court after a remand from the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit),
following this Court\'s August 1999 affirmance of the Board\'s decision.
*Davis v. Gober*, No. 00‑7049, 2000 U.S. App. LEXIS 29635**

**(Fed. Cir. Oct. 25, 2000) (order issued as mandate) (removing case
from Federal Circuit argument calendar and remanding to this Court for
further proceedings consistent with *Hensley v. West*, 212 F.3d 1255
(Fed. Cir. 2000)). The Court has jurisdiction under 38 U.S.C. § 7252(a).
For the reasons that follow, the Board\'s decision will be vacated and
the matter remanded.**

**I. FACTS**

**Mr. Davis served on active duty in the U.S. Army from December 1970
until his honorable discharge in March 1973. Record (R.) at 8. The
record on appeal (ROA) reflects that in January 1979 Mr. Davis reported
to a VA medical center (VAMC) to receive treatment for alcohol
addiction. R. at 47-48. His medical history taken at that time revealed
a \"32 year old . . . veteran . . . \[who\] admitted to an alcohol
history of fifteen years, with the last four years being the most
abusive.\" R. at 47. On November 12, 1986, he was admitted to a VAMC
inpatient rehabilitation program for chronic alcohol and cocaine
dependence. R. at 49-50. He was discharged on December 1, 1986, with a
report noting that his counselor felt he would \"je\[o\]pardize the
program and the progress of the other veterans\" in the program if he
remained in it. *Id.***

**In October 1989, a VA regional office (RO) received a request from Mr.
Davis to reopen his claim for service connection for a foot condition,
stating that he was \"willing to report now for any exam.\" R. at 40.
The RO sent him a formal application, which he returned claiming service
connection for stress and for a mental condition. R. at 42-44. A
December 1989 RO decision denied that claim on the basis that he did not
have a current diagnosis of post-traumatic stress disorder, psychosis,
or neurosis. R. at 74-75. The decision noted that his service medical
records (SMRs) were not available and could not be reconstructed, and
stated that Mr. Davis\' disability was \"the result of \[his\] own
willful misconduct --- cocaine and alcohol abuse.\" *Id*.; *see also*
R. at 15, 17 (documents dated 1979 and 1987 indicating SMRs had been
sent from National Personnel Records Center (NPRC) to RO in 1978 and
could not be located by NPRC or RO).**

**In September 1995, Mr. Davis submitted to the RO correspondence
disagreeing with a denial of a claim for service connection for diabetes
(any previous documentation of this claim is not of record). R. at
80-81. At that time he also requested non-service-connected benefits and
inquired about the status of his claims for a foot disorder and for
\"substance abuse.\" *Id.* The RO treated the correspondence as a claim
for VA benefits, and in December 1995 issued a decision finding, inter
alia, that Mr. Davis\' substance abuse was the result of willful
misconduct, and, therefore, he was not eligible for a grant of service
connection. R. at 83-84. He filed a Notice of Disagreement (R. at 89),
and the RO issued a Statement of the Case (SOC) (R. at 93-103).**

**In October 1996, Mr. Davis underwent a VA psychiatric examination.
R. at 184-85. He related to Dr. Ernest Castillo that he had started
drinking as a teenager and started using heroin in 1974. R. at 185. He
also reported that he had been \"off and on\" a methadone program from
\"1973 or 1974\" until 1981. *Id.* He told the examiner that he had been
free of drugs since March 1996 and free of alcohol since 1989 or 1990.
*Id*. Dr. Castillo diagnosed him as suffering from a delusional disorder
and insulin-dependent diabetes mellitus. *Id*.**

**A December 1996 RO decision granted Mr. Davis non-service-connected
pension but denied service connection for substance abuse. R. at 191-93.
The RO issued a Supplemental SOC (R. at 187-89) and Mr. Davis appealed
to the Board (R. at 195-96). In his appeal he stated:**

> **\[W\]hile in service close to separation I was given a urine test
> and was found to be positive for morphine. I was then sent to the
> Hospital at Ft. Knox for detoxification and placed on methadone for a
> period of four or five years. In other words it carried over after
> service, I was hooked on the methadone that was supposed to cure me of
> my substance abuse condition.**

**R. at 195.**

**Denying the claim in December 1997, the Board framed the issue as
\"\[e\]ntitlement to service connection for substance abuse\" and found,
as a matter of law, that Mr. Davis was not entitled to benefits. R. at
1-4. The Board stated: \"The veteran\'s substance abuse is of primary
origin, and the result of his own willful misconduct, and not subject to
service connection.\" R. at 2. The Board noted that no SMRs were part of
the claims file and stated:**

> **Records of post-service VA treatment show that the veteran has been
> treated and diagnosed with alcohol addiction; chronic alcohol and
> cocaine dependence; substance dependence; cocaine and alcohol abuse;
> drug abuse, cocaine and marijuana; and alcohol, opiate and cocaine
> dependence. These treatment records include no evidence that the
> veteran\'s various addictions are not of primary origin, or the result
> of the veteran\'s own willful misconduct.**

**R. at 4. Relying on *Sabonis v. Brown*, 6 Vet.App. 426, 430 (1994),
the Board concluded that \"\[n\]otwithstanding the veteran\'s statement
that his drug problem began in military service, drug abuse is
considered to be of willful\[-\]misconduct origin and it may not be
service connected as a primary condition.\" R. at 4. Mr. Davis appealed
the Board\'s decision to this Court.**

**II. ANALYSIS**

**A Board determination on whether a particular disability will be
service connected is a finding of fact that the Court reviews under the
\"clearly erroneous\" standard of review. *See* 38 U.S.C. § 7261(a)(4);
*Russo v. Brown*, 9 Vet.App. 46, 50 (1996); *Horowitz v. Brown*, 5
Vet.App. 217, 221 (1993). When rendering a decision, the Board is
required to provide a written statement of the reasons or bases for its
findings and conclusions on all material issues of fact and law
presented on the record. *See* 38 U.S.C. § 7104(d)(1). The Board must
identify the findings it deems crucial to its decision and account for
the evidence it finds persuasive or unpersuasive. *See Gilbert
v. Derwinski*, 1 Vet.App. 49, 57 (1990). \"The statement must be
adequate to enable a claimant to understand the precise basis for the
Board\'s decision, as well as to facilitate review in this Court.\" *Kay
v. Principi*, 16 Vet.App. 529, 532 (2002) (citing *Allday v. Brown*,
7 Vet.App. 517, 527 (1995)). Where the Board fails to meet this
obligation, the Court is precluded from effectively reviewing the
adjudication. *See Meeks v. Brown*, 5 Vet.App. 284, 288 (1993); *see
also Ardison v. Brown*, 6 Vet.App. 405, 407 (1994) (holding that \"an
inadequate record frustrates judicial review\"). Generally, a remand is
the appropriate remedy where the Board has failed to provide an adequate
statement of reasons or bases for its determinations. *See Hicks
v. Brown*, 8 Vet.App. 417, 422 (1995).**

**Mr. Davis contends that the Board erred in denying his claim as a
matter of law. At oral argument, counsel for Mr. Davis stated that the
\"claim is not for service connection for drug abuse,\" but rather,
\"the disability is the substance abuse that resulted from the
in-service treatment of methadone.\" Mr. Davis argues that morphine is a
legal prescription drug and that there is no evidence that the
in-service detection of it in his system demonstrated its use for
other-than-prescribed purposes. He contends further that the in-service
methadone treatment was prescribed based on the presence of morphine in
his urine and that there is no evidence that he took methadone for any
purposes other than those prescribed. In fact, counsel stated at
argument that she has knowledge of additional medical records pertaining
to Mr. Davis\' postservice methadone treatment by VA. Mr. Davis argues
that, because there is no evidence that his disability is the result of
misconduct or the abuse of drugs, the Board erred in concluding that his
behavior was willful misconduct and, therefore, that his claim lacked
legal merit.**

**The Board is correct that service connection cannot, as a matter of
law, be granted for primary substance abuse. *See* 38 U.S.C. §§ 101(16),
105, 1110; 38 C.F.R. § 3.301 (2002); *Allen v. Principi*, 237 F.3d 1368,
1370 (Fed. Cir. 2001). In this case, however, the ROA and the reasoning
provided by the Board are insufficient to permit the Court to conduct
meaningful judicial review. *See Kay,* 16 Vet.App. at 532-33. The
argument Mr. Davis made to the Board, the one counsel emphasizes here,
is that *any* disability Mr. Davis now suffers is the result of
in-service methadone treatment by VA. Although the Board noted that Mr.
Davis \"alleges that being provided methadone in a detoxification
program resulted in addiction,\" the Board did not address in any manner
that claim, merely concluding without the requisite reasons or bases
that his condition was of \"primary origin.\" R. at 2. In light of
counsel\'s suggestion as to the existence of additional, purportedly
relevant VA medical records pertaining to Mr. Davis\' methadone
treatment, and based on the paucity of the record relied upon by the
Board, the Court is unable to review effectively the Board\'s decision.
Accordingly, that decision must be vacated and the matter remanded for
readjudication. *See Ardison,* 6 Vet.App. at 409-10.**

**We note that while this case was on appeal, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(Nov. 9, 2000), was enacted. Among other things, the VCAA eliminated the
well-grounded-claim requirement and modified the Secretary\'s duties to
notify and assist claimants. *See generally* VCAA, §§ 3, 4, 7. On
remand, Mr. Davis is entitled to any expanded notice and assistance
afforded by the VCAA. *See* 38 U.S.C. §§ 5103(a), 5103A; *Karnas
v. Derwinski*, 1 Vet.App. 308, 313 (1991) (\"\[W\]here the law or
regulation changes after a claim has been filed or reopened but before
the administrative or judicial appeal process has been concluded, the
version mo\[re\] favorable to \[the\] appellant should . . . apply
unless Congress provided otherwise or permitted the Secretary . . . to
do otherwise and the Secretary did so.\").**

**III. CONCLUSION**

**Upon consideration of the pleadings, arguments presented by the
parties, and review of the record, the Court holds that the Board\'s
decision fails to fulfill the \"reasons or bases\" requirement of 38
U.S.C. § 7104(d)(1) and that the ROA is inadequate for effective
judicial review. *See Kay,* 16 Vet.App. at 533; *Gilbert*, 1 Vet.App. at
56-57. Accordingly, the December 3, 1997, decision of the Board is
VACATED and the matter is REMANDED.**