BVA9503905 DOCKET NO. 93-04 725 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether the injuries sustained by the veteran in the June 22, 1990, motor vehicle accident were incurred in the line of duty. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 1992 administrative decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania, (RO) which denied the benefit sought on appeal. The veteran, who had active service from September 1989 to April 1991, appealed that decision to the BVA, and the case was received at the Board in March 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in not granting the benefit sought on appeal. The veteran maintains, in substance, that the motor vehicle accident which occurred on June 22, 1990, was not the result of his misconduct or alcohol consumption, but rather was caused by drowsiness due to an over- the-counter medication he was using for treatment of a sinus condition. The veteran also suggests that the medication may have affected the results of the blood-alcohol test. The veteran relates that he was not driving at an excessive rate of speed given the roadway and conditions existing at the time of the accident. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim to establish that the injuries he sustained in a June 22, 1990, motor vehicle accident were incurred in the line of duty. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran sustained multiple injuries on June 22, 1990, when the automobile he was operating was involved in a single car motor vehicle accident. 3. The veteran consumed alcoholic beverages prior to the June 1990 motor vehicle accident and the operation of his automobile following the consumption of alcoholic beverages was the proximate cause of the injuries sustained in that accident. CONCLUSION OF LAW The injuries sustained by the veteran in the June 22, 1990, motor vehicle accident were not incurred in line of duty. 38 U.S.C.A. §§ 105, 5107 (West 1991); 38 C.F.R. §§ 3.1(m),(n), 3.102, 3.301 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The veteran sustained multiple injuries for which he is seeking to establish service-connected disabilities when he was involved in a motor vehicle accident on June 22, 1990. The veteran was operating an automobile westbound on Interstate 70 in Kansas when his vehicle left the roadway, became airborne, and then rolled approximately three times before coming to rest on the roof of the car. The veteran was not wearing a seat belt and was ejected from the car. Subsequent investigation indicated that, based on skid marks, the veteran was exceeding the posted 65 miles per hour speed limit. The accident report indicated that the accident occurred at night with no street lights at 11:45, with no adverse weather or atmospheric conditions present, on dry blacktop of a straight road which was on a grade. Alcohol was suspected of being a factor in the accident, and an Alcohol/Drug Influence Report indicated that the investigating officer was led to suspect that alcohol was involved due to the odor of intoxicants on the veteran's breath and voluntary statements the veteran had made to witnesses. The veteran does not dispute that he had consumed some alcohol during the evening prior to the accident, but contends, on appeal, that he had not consumed any alcohol for at least one hour prior to the accident. The veteran essentially maintains that his alcohol consumption was not the proximate cause of the accident and his injuries, but rather, that he became drowsy and fell asleep while driving under the influence of a non- prescription sinus medication. Under 38 U.S.C.A. § 105(a) (West 1991), the veteran's injuries are deemed to have been incurred in the line of duty unless the injuries were the "result of a person's own willful misconduct or abuse of alcohol or drugs." In this case, the Board finds that the preponderance of the evidence demonstrates that the injuries sustained by the veteran in the June 22, 1990, motor vehicle accident were proximately due to the veteran's operation of a motor vehicle at excessive rates of speed without seat belts following consumption of alcoholic beverages. Simply put, the injuries sustained by the veteran in the June 1990 motor vehicle accident were not incurred in the line of duty because they were the result of the veteran's abuse of alcohol. While the results of the veteran's blood-alcohol content taken following the accident have been disputed, the veteran's blood- alcohol content taken following the accident and obtained by trained personnel in the normal course of investigating an accident was 0.07 grams per 100 ML of blood. Subsequent investigation determined that the veteran's blood-alcohol sample was obtained more than two hours after the accident and thus, was not competent evidence. However, in subsequent legal proceedings, but it is noteworthy that the value elicited was slightly below the level of .08 necessary for an absolute prohibition of operating a motor vehicle. See Kan. Stat. Ann. § 8-1567(a) (1994). It is also worth noting that under Kansas statutes, it is also illegal to operate a motor vehicle under the influence of alcohol to a degree that renders a person incapable of safely driving a vehicle, apparently without regard to the specific alcohol concentration. Nevertheless, several hours following the accident a significant concentration of alcohol remained in the veteran's system. No evidence has been submitted to refute the accuracy of that testing, or to demonstrate any possible contamination from the medication the veteran was taking or from any other source. While this test may not be competent evidence in subsequent traffic or criminal legal proceedings, it is competent evidence to be considered in an administrative proceeding such as this one. Of particular significance, however, are the differences in the the statements the veteran made in connection with the investigation of the June 1990 motor vehicle accident, and those made currently on appeal. Contrary to the version of events the veteran has related now on appeal, at no time during the investigation of the accident did the veteran report that he had become drowsy and fallen asleep at the wheel. In fact, the veteran appears to have succinctly related the cause of the accident when, according to the Alcohol/Drug Influence Report, the veteran made unsolicited statements to at least one witness which related that he had been drinking with friends and that he "really fucked up." Also, when the veteran was interviewed in the hospital by a police officer, the officer indicated that he noticed an odor of intoxicants on the veteran's breath and that he asked the veteran whether he had been drinking. The veteran then informed the officer that the accident had occurred when: "The wind took the car. I tried to brake it. By the time I tried to brake it, we were skidding in the grass." The veteran also provided a statement concerning the accident to a service investigating officer. In that statement, the veteran indicated that there were a couple of wet spots on the road and that he hit a wet spot as he was going to pass a truck and moved into another. At that time, the veteran denied that any alcohol was involved in the accident. The Board finds that the statements the veteran provided in connection with the investigation of the circumstances of the motor vehicle accident of June 1990 are more credible and have more probative value than the statements the veteran has presented on appeal. The earlier statements do not provide any support for the veteran's contention on appeal that he fell asleep at the wheel, but rather demonstrate that there was another cause of the accident. While the veteran then indicated to authorities that there were wet spots on the road and/or gusty winds which caused the accident, the police report of the accident indicates that the road surface was dry with no adverse weather or atmospheric conditions. Also, witnesses to the accident did not refer to the presence of a truck in the vicinity of the accident. Thus, when the external causes of the accident related at the time of the investigation are discounted, the only remaining explanation for the accident is the veteran's operation of his motor vehicle in excess of the posted speed limit following consumption of alcoholic beverages. Even were the accident not sufficiently explained by the veteran's abuse of alcohol on June 22, 1990, the Board would still be inclined to determine that his injuries were due to the veteran's own willful misconduct. By the veteran's own admission, he had consumed alcoholic beverages prior to operating his automobile, and while he may have been of legal age to consume alcohol on base, the veteran indicated that he was underage to consume alcoholic beverages in Kansas. He was also exceeding the posted speed limit, as witnesses reported that they were traveling at 70 miles per hour and that the veteran passed them. Most significantly, the veteran was not wearing a seat belt at the time of the accident, and as a result, he was ejected from the vehicle. In this regard, it is noteworthy that the passenger who was not ejected from the vehicle apparently did not sustain significant or serious injuries. ORDER The multiple injuries sustained by the veteran in the June 22, 1990, motor vehicle accident were not incurred in the line of duty, and the benefit sought on appeal is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.