BVA9500589 DOCKET NO. 92-05 136 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. This involves the issue of whether the veteran's death resulting from a December 1981 automobile accident was incurred in line of duty or was due to his own willful misconduct. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had active service from April 1977 until his death in December 1981. In May 1982 the Department of Veterans Affairs (VA) Regional Office (RO), New York, New York, denied entitlement of the appellant to service-connected death benefits on the basis that the veteran's death from injury sustained in a December 1981 automobile accident had not been incurred in the line of duty but had been a result of his own willful misconduct. The appellant submitted a notice of disagreement with that decision and was sent a statement of the case. (By reason of the change of the appellant's domicile to Pennsylvania, the RO involved was and remains the Philadelphia, Pennsylvania RO.) However, she did not perfect her appeal. In late 1990, the appellant submitted additional information for the purpose of reopening her claim and in February 1991 the RO again denied her claim. She disagreed with that decision. In September 1992 the appellant testified at a hearing before a member of the Board of Veterans' Appeals (Board). In March 1993 the Board remanded the case for further action. The Board noted in the March 1993 remand that it considered the recently submitted evidence to be new and material and sufficient to reopen the appellant's claim for service connection for the cause of the veteran's death and that her claim would accordingly be considered on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the veteran's death should be considered as having been incurred in line of duty and not due to his own willful misconduct since, as a result of a skull fracture he received in a prior accident or assault that occurred in February 1981, he had such a diminished mental capacity that he was unable to understand the consequences of his actions. Accordingly, it is maintained that service connection should be established for the cause of the veteran's death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence establishes that the veteran's fatal accident while serving on active duty was due to his own willful misconduct and that service connection for the cause of his death is therefore not in order. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO to the extent possible. 2. The veteran's death occurred in December 1981 while he was serving on active duty due to injuries sustained in an automobile accident. 3. The veteran had been operating his vehicle the wrong way on a freeway when he collided with another vehicle. His blood-alcohol was .295 percent. 4. The evidence establishes that the veteran was intoxicated at the time of the accident and that the intoxication was the proximate cause of the accident. 5. The evidence does not establish that the veteran sustained any significant diminished neurologic or mental capacity as a result of a February 1981 skull fracture that caused or contributed significantly to the December 1981 automobile accident. CONCLUSION OF LAW The veteran's death resulting from injury sustained in the December 1991 automobile accident was not incurred in line of duty but was a result of his own willful misconduct. Accordingly, service connection for the cause of his death is not warranted. 38 U.S.C.A. §§ 101(16), 105(a), 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.301 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. I. Background The record reflects that the veteran's death occurred in December 1981 while he was serving on active duty as a result of injury sustained in an automobile accident. A service department line- of-duty investigation report reflects that the veteran had been driving his vehicle on the wrong side of a freeway when he collided with another vehicle. It was indicated that a blood- alcohol test made on the day of the accident showed a reading of .295 percent. An Army accident report included with the line-of-duty investigation indicates that the veteran had left a club at Hickam Air Force Base and had been drinking. In a sworn statement in January 1982, the officer who conducted the line-of- duty investigation indicated that he had asked the officer who had completed the accident report where he had obtained the information regarding drinking on the part of the veteran prior to the accident. The safety officer indicated that he had spoken with an officer from the Honolulu Police Department who had indicated that the veteran's spouse had received a call from the veteran at the Hickam Noncommissioned Officers' Club at 10:30 p.m. The veteran had informed her that he had stopped for a few drinks and would be home later. The veteran was hospitalized at the Tripler Army Medical Center for several days after the December 1981 accident and until his death. At the time of his admission to the hospital, a number of diagnoses were recorded including acute ethanol intoxication. An emergency care record dated the day of admission includes an entry stating that the veteran's blood-alcohol reading was .295 percent. The veteran's service medical records also reflect that he had been hospitalized during February and March 1981 for a skull fracture sustained in an accident or assault. He underwent a craniotomy. Postoperatively it was indicated that he was observed for two days and did very well. On February 19 he was deemed well enough to be discharged to a month of convalescent leave and following the leave he returned with a well-healed wound and no residual neurologic deficits. It was indicated that he was taking no medications at the time of his discharge from the hospital. Information from the veteran's service personnel records reflects that in early March 1981 it was indicated that the veteran had shown a complete understanding of the duties and responsibilities of a clinical specialist. His attendance at advance courses was recommended. At a May 1991 hearing at the RO, the appellant testified that following the veteran's February 1981 injury he had sustained a memory loss and that he had gone to see a psychiatrist. He had been taking various types of medication for sleeping and had also had headaches. She also testified that on one occasion the veteran had blacked out on his way to work. During the course of a September 1992 hearing at the Board, the appellant related that the veteran had not been himself following the February 1981 injury. She stated that he started becoming very aggressive. She stated that his personality had definitely changed. She stated that after the February 1981 injury, the veteran starting drinking because he complained of headaches. She indicated that he would become disoriented around the house. He had many nightmares and would wake up with cold sweats. She indicated that on the night of the accident the veteran had called her from the Noncommissioned Officers' Club and had informed her that he would have some drinks and then return home. In March 1993 the RO wrote to the National Personnel Records Center and asked that that facility provide any additional service medical records of the veteran as well as his personnel folder. The National Personnel Records Center later provided available records consisting primarily of casualty reports pertaining to the veteran and various personnel records. The personnel records do not reflect any information regarding emotional or mental problems of the veteran following the February 1981 accident. The appellant was contacted by the RO in March 1993 and asked to provide the name of the medical facility where she and the veteran went to see the psychiatrist after the veteran's February 1981 skull fracture and the month in which the visit occurred. The appellant later indicated that they had gone to the psychiatrist's office at the Scofield Barracks in about June 1981. There is of record an August 1993 statement by the National Personnel Records Center indicating that clinical records from the Tripler Army Medical Center in 1981 did not contain any information that the veteran had been referred to a psychiatrist. It was also indicated that a search had been conducted of the 1979 through 1981 mental health records retired by the Tripler Army Medical Center and the 1980 through 1983 mental health records from the Scofield Barracks and that no records had been located for the veteran. II. Analysis 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 the line of duty in the active military, naval or air service. 38 U.S.C.A. § 101(16). An injury or disease incurred during active military, naval or air service will be deemed to have been incurred in the 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). Willful misconduct means an act involving conscious wrongdoing or known prohibited action (malum in se or malum prohibitum). 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 injury, disease or death. 38 C.F.R. § 3.1(n). 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). In this particular case, as indicated previously, the record reflects that the veteran's death occurred in December 1981 as a result of injuries sustained in an automobile accident while he was on active duty. He had been operating his vehicle the wrong way on a freeway when he collided head-on with another vehicle. The veteran was severely intoxicated at the time of the accident as evidenced by his blood-alcohol level which was .295 percent. The service department investigation into the circumstances of the accident does not reflect any other reason for the accident other than the intoxication on the part of the veteran. The appellant has maintained that, following a February 1981 skull fracture sustained in another accident or assault, the veteran experienced a personality change and exhibited various symptoms including increased aggressiveness, headaches and memory loss. She also made mention of an episode of blackout. She has indicated that she and the veteran consulted a psychiatrist at the Scofield Barracks in about June 1981. The appellant has maintained that the veteran's mental capacity was diminished as a result of the February 1981 injury and that the diminished capacity may have caused or contributed toward the fatal automobile accident. The Board has carefully reviewed the entire record in light of the appellant's contentions. However, the evidence of record does not contain any information that would corroborate her assertions. Efforts to obtain a report of the veteran's June 1981 visit to the psychiatrist at the Scofield Barracks have not been successful. Moreover, the Board notes that. at the time of his discharge from the period of hospitalization following the February 1981 skull fracture, it was indicated that there were no residual neurologic defects and he was taking no medication. Further, in a career development report dated in March 1981 it was indicated that he had shown a complete understanding of the duties and responsibilities of a clinical specialist and his attendance at advanced courses was recommended. Thus, the available records (which, as they include dental records dated as late as September 1981 and optometry records as late as November 1981, would appear to be complete) do not indicate any significant physical, mental or emotional impairment of the veteran that may have contributed toward the December 1981 fatal automobile accident. In the Board's judgment, the evidence establishes that the December 1981 automobile accident was proximately caused by intoxication on the part of the veteran. His operation of his vehicle while intoxicated establishes a wanton and reckless disregard of the probable consequences. Under such circumstances, it follows that his death was not incurred in the line of duty but was a result of his own willful misconduct. 38 C.F.R. §§ 3.1, 3.301. Service connection for the cause of his death is therefore not in order. 38 U.S.C.A. §§ 101, 105. The Board does not find the evidence in this case to be so evenly balanced that there is doubt to any material issue. 38 U.S.C.A. § 5107. ORDER The veteran's death was a result of his own willful misconduct. Entitlement to service connection for the cause of his death is therefore not established. The benefit sought on appeal is denied. JAMES R. ANTHONY 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.