Citation Nr: 0001996 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 95-07 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for residuals of injuries suffered in a fall from a balcony, June 25, 1993. ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from August 1990 to December 1993. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a March 1994 administrative decision of the Togus, Maine Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim of service connection for residuals of multiple injuries received in a fall in service on the basis that such injuries were the result of his own willful misconduct. The veteran was scheduled for and notified of an August 1997 personal hearing before a Member of the Board sitting at the RO; however, he failed to report to that hearing. The Board remanded the case in September 1997 for additional development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Injuries sustained in a June 25, 1993 fall were proximately caused by the veteran's willful misconduct. CONCLUSION OF LAW The injuries sustained in a June 1993 fall were the result of the veteran's own willful misconduct. 38 U.S.C.A. §§ 105, 1110 (West 1991); 38 C.F.R. §§ 3.1, 3.301 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is plausible and thus, is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board further finds that the matter has been adequately developed for the purpose of appellate review. In the present case, the veteran sustained multiple fractures after falling approximately four stories from a balcony in June 1993. His injuries included left distal tibial fracture, left fibular fracture, left distal humerus fracture with left proximal ulnar fracture, bilateral superior and inferior pelvic ramus fractures and left Type II sacral fracture, and left lumbar vertebrae numbers 4 and 5 transverse process fracture. The veteran was afforded a VA examination in January 1994. The report of that examination noted that the veteran sustained multiple injuries in a fall from a balcony, but did not include any further information regarding the circumstances of the fall. In a Report of Accidental Injury form completed by the veteran in February 1994, he reported that, at the time of the June 1993 fall, alcoholic beverages "were present." In the portion of the form requesting a full description of how the accident occurred, the veteran wrote "I drank to[o] much and blacked out." In additional statements submitted in support of his claim, the veteran has asserted that the fall was an accident, unintentional and not the result of his own willful misconduct. In perfecting his appeal in February 1995, the veteran noted that he "learned" to smoke and drink during service, that he followed older, more experienced soldiers and he "fell off a building while we were partying." An October 1993 narrative summary details the history of the veteran's June 1993 injuries and subsequent treatment. The veteran sustained multiple fractures after falling approximately four stories from a hotel in June 1993. He was reportedly intoxicated at the time, with a blood alcohol level of .36 on presentation to a civilian hospital. He underwent an initial evaluation and was stabilized and then transferred on hospital day number one to Tripler Army Medical Center (TAMC) in stable condition. Upon admission to TAMC, he underwent further evaluation and treatment of his orthopedic injuries. In reporting the laboratory data on admission to TAMC, the veteran's blood alcohol level of .36 on first admission after the accident was noted. The veteran was discharged from TAMC on September 17, 1993. Service medical records include a July 1993 memorandum to the veteran's commanding officer regarding an evaluation conducted at Tri-Service Alcoholism Recovery facility in June 1993, following admission to TAMC. It was noted that the evaluation was performed after the veteran presented to a civilian hospital with multiple trauma from a fall and a blood alcohol level of .36. The evaluators determined that the veteran had an alcohol use history consistent with criteria for alcohol dependence as evidenced by his: using more alcohol than he intended; unsuccessful efforts to control use; alcohol use interfered with safety; used alcohol knowing it caused other problems; and high tolerance. The veteran had reportedly started drinking while in basic training. He was noted to have had several blackouts, but "nothing ever happened; [he] just woke up on my bed without knowing how [he]'d gotten there." He was in a blackout when he suffered his fall. Witnesses, according to the veteran, described the fall as accidental. When the Board initially reviewed the veteran's appeal in September 1997, it was noted that it was unclear whether a line of duty investigation was performed by military authorities. The Board remanded the case and instructed the RO to determine whether a line of duty investigation report or Physical Evaluation Board report existed and if so, obtain those reports. Thereafter, the RO was to review the veteran's claim, and apply the appropriate legal criteria. Subsequent to the Board remand, the RO made numerous attempts to determine whether a line of duty determination was ever performed. The claims folder includes documentation detailing the RO's efforts and attempts to contact various sources for records; however, those efforts were unavailing. The Board is satisfied that the RO fulfilled its duty to assist the veteran in attempting to obtain pertinent records. As there is no service department determination available for review, the Board must decide the case based on the evidence of record. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, but no compensation shall be paid if the disability is the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110. As noted by the Board in the September 1997 remand, there is a statutory presumption that an injury incurred during active military service is incurred in line of duty, and the burden is on the Government to overcome this presumption. 38 U.S.C.A. § 105(a); Smith v. Derwinski, 2 Vet. App. 241 (1992); 38 C.F.R. § 3.1(m). By operation of 38 U.S.C.A. § 105(a), the veteran's injuries are therefore deemed to have been incurred in line of duty unless it is shown that he engaged in willful misconduct and that such misconduct proximately caused his injuries. As set forth below, the evidence of record rebuts the presumption that the injuries sustained in the June 1993 fall were incurred in line of duty and demonstrates that the fall and resulting injuries were the result of willful misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of the injury, disease, or death. 38 C.F.R. § 3.1(n). The simple drinking of alcoholic beverage is not of itself willful misconduct. If, however, 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. 38 C.F.R. § 3.301(c)(2). The evidence of record shows that the veteran had a blood alcohol level of .36 upon admission to the hospital after the fall. The veteran has not disputed that finding and he himself reported that the fall occurred during a "blackout." Instead, he contends that his drinking should not be considered willful misconduct because he only began drinking during service. He essentially contends that his drinking was not his fault, that he was only doing what more experienced soldiers were doing. The Board notes that the report of an evaluation of the extent of the veteran's drinking conducted upon admission for treatment of the multiple injuries suffered in the fall noted that among the criteria for alcohol dependence evidenced by the veteran was his continued use of alcohol, knowing it caused other problems. In addition, the veteran had noted that he suffered blackouts before, but "nothing ever happened." Regardless of the reason the veteran began drinking, the question in this case is whether his behavior constituted willful misconduct and whether such behavior was the proximate cause of the injuries. Following a review of the record, the Board finds that, based upon the preponderance of the evidence, the veteran's own actions resulted in injuries sustained while under the influence of alcohol. There is no evidence of an intervening cause of the fall other than alcohol consumption. The veteran's actions involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences. The veteran himself reported that alcohol was involved in the accident and he fell during a blackout. In addition, he reported having suffered blackouts prior to the date of the fall and was noted to have continued use of alcohol, despite knowing it caused other problems. Thus, the evidence overwhelmingly establishes that use of alcohol and intoxication on the part of the veteran were the proximate cause of the fall and his injuries. Given that the fall and resulting injuries were a result of the veteran's own willful misconduct, service connection must be denied. 38 C.F.R. §§ 3.31, 3.301. ORDER As the veteran's own willful misconduct was the proximate cause of the June 1993 fall and injuries, service connection for the residuals of those injuries is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals