Citation Nr: 0002373	
Decision Date: 01/31/00    Archive Date: 02/02/00

DOCKET NO.  99-13 646A	)	DATE
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THE ISSUE

Whether November 1988 and December 1989 decisions of the 
Board of Veterans' Appeals (Board) denying service connection 
for the cause of the veteran's death should be revised or 
reversed on the grounds of clear and unmistakable error.


(The issue of the appellant's entitlement to an effective 
date prior to October 29, 1993, for the grant of entitlement 
to service connection for the cause of the veteran's death 
and Dependency and Indemnity Compensation (DIC) is addressed 
in a separate decision.)


REPRESENTATION

Moving Party Represented by:  Disabled American Veterans



ATTORNEY FOR THE BOARD

N. W. Fabian, Counsel


INTRODUCTION

The veteran had active duty from October 1980 to August 1986.  

In a November 1988 decision the Board determined that the 
veteran's death in August 1986 did not occur in the line of 
duty because his death was caused by his own willful 
misconduct.  The appellant requested reconsideration of that 
decision, and in a December 1989 decision the Board upheld 
the finding that the veteran's death did not occur in the 
line of duty.  The November 1988 and December 1989 decisions 
are final.  38 U.S.C. § 4004(b) (1988).

In a June 1998 decision the Board determined that new and 
material evidence had been submitted to reopen the previously 
denied claim, and remanded the issue of the appellant's 
entitlement to service connection for the cause of the 
veteran's death to the Department of Veterans Affairs (VA) 
Regional Office (RO) for consideration of the substantive 
merits of the claim.  See Bernard v Brown, 4 Vet. App. 384 
(1993).  In a June 1998 administrative decision the RO found 
that the veteran's death had occurred in the line of duty, 
and awarded entitlement to DIC benefits to the appellant 
effective in October 1993.

In July 1999 the appellant's representative submitted to the 
Board a motion for review of the November 1988 and December 
1989 Board decisions on the basis of clear and unmistakable 
error.  For good cause shown, the appellant's motion for 
advancement on the docket has been granted.  38 U.S.C.A. 
§ 7107(a) (West 1991); 38 C.F.R. § 20.900(c) (1999).


FINDINGS OF FACT

1.  In November 1988 and December 1989 decisions the Board 
denied entitlement to service connection for the cause of the 
veteran's death and DIC benefits.  The November 1988 and 
December 1989 decisions are final.

2.  The appellant has failed to raise a valid claim of clear 
and unmistakable error in the November 1988 or December 1989 
decisions.


CONCLUSION OF LAW

The November 1988 and December 1989 decisions in which the 
Board denied entitlement to service connection for the cause 
of the veteran's death were not based on clear and 
unmistakable error.  38 U.S.C. §§ 105(a), 410, 4004(b) 
(1988), 
38 U.S.C.A. § 7111 (West 1991 and Supp. 1999); 38 C.F.R. 
§§ 3.1(m) and (n), 3.301 (1988), 38 C.F.R. §§ 20.1403, 
20.1404, 20.1406 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The veteran's service records show that he died while on 
active duty on August 7, 1986, as the result of the injuries 
incurred in a motor vehicle accident.  The Military Police 
Report indicates that at 0050 hours on that date the veteran 
was attempting to negotiate a curve on a roadway in Germany 
when, due to excessive speed, he lost control of the vehicle.  
The vehicle then skidded to the left into the oncoming lane 
of traffic, where it collided with a vehicle traveling in the 
opposite direction.  Due to the force of the impact, the 
gasoline tank in the veteran's vehicle exploded, causing both 
vehicles to burn.  The veteran and the driver of the second 
vehicle were pronounced dead at the scene.  Further 
investigation revealed that the veteran had been traveling at 
107 kilometers per hour in a 60 kilometer per hour speed 
zone.  On release of the veteran's body from a German morgue, 
a service department pathologist conducted an autopsy and 
drew blood for conducting a blood alcohol test.  Based on the 
results of the blood alcohol test, the veteran was charged 
with negligent homicide and drunk driving under the Uniform 
Code of Military Justice.

The autopsy report shows that the autopsy was conducted on 
August 8, 1986, approximately 35 hours following death.  The 
body was extensively burned to a depth of several 
centimeters, and was identified based on dental records.  
During the autopsy the pathologist withdrew blood from the 
right atrium of the heart for the purpose of a toxicology 
study.  Physical examination of the liver showed that it was 
almost twice its normal size, and microscopic examination 
revealed severe macrovesicular steatosis in the liver.  The 
pathologist determined that the cause of death was 
hyperthermia due to the motor vehicle accident and the 
resulting fire.

The toxicology report indicates that the veteran's blood 
alcohol level was 0.130 percent, and that the legal limit was 
0.100 percent.  The report also indicates that the specimen 
for the test was taken on August 11, 1986, and that the test 
results were determined on August 11, 1986.

Documents in the service records indicate that on August 9, 
1986, the appellant provided the authorization for the 
veteran's remains to be shipped to a funeral home in Houston, 
Texas.  The documents also include an air waybill dated 
August 11, 1986, prepared by the Traffic Management Office at 
Dover Air Force Base, Delaware, authorizing Continental 
Airlines to transport the remains from the Philadelphia 
airport to the Houston airport.

The report of the line of duty investigation shows that the 
service department did not make a determination as to whether 
the accident occurred in the line of duty.  In an April 1987 
administrative decision the RO determined that the veteran's 
death did not occur in the line of duty because it was due to 
willful misconduct, in that his blood alcohol level was above 
the legal limit for intoxication.

In conjunction with her appeal the appellant submitted a 
November 1986 report of the investigation conducted by the 
Criminal Investigative Command, which indicates that the 
veteran had unlawfully killed the driver of the second 
vehicle by negligently operating his vehicle while under the 
influence of alcohol.  That finding was based on the 
investigation of the crime scene, interviews with witnesses 
and other service members who had been with the veteran 
earlier in the evening, and the autopsy results.  

The investigator, who had observed the autopsy, stated that 
the examining pathologist had provided the opinion that the 
veteran was a heavy alcohol drinker due to the size of the 
liver.  The investigator also stated that a blood sample was 
drawn from the heart during the autopsy, the analysis of 
which showed that his blood alcohol level was 0.13 percent at 
the time of his death, which placed him over the legal limit 
of 0.10 percent and meant that he was driving under the 
influence of alcohol.

In a January 1988 statement the appellant noted a number of 
discrepancies in the military reports.  She stated that 
although the autopsy report indicated that blood was 
withdrawn for the toxicology study on August 8, 1986, the 
laboratory report of the toxicology study indicated that the 
specimen was taken August 11, 1986, with results rendered on 
August 14, 1986.  She referred to differing accounts of the 
extent of the injuries incurred by a passenger in the second 
vehicle, the absence of any statements from other Military 
Police Officers at the scene, and the absence of any 
photographs of the accident scene.  She asserted that 
"someone" was attempting to cover-up the murder of her 
husband for the sake of German-American relations.

In the November 1988 decision the Board summarized the 
service department's investigation report, the autopsy 
report, the report of the toxicology study showing a blood 
alcohol concentration of 0.130 percent, and the military 
police report.  Four of the six Board members on the panel 
found that the veteran had been traveling at a high rate of 
speed while under the influence of alcohol, which constituted 
willful misconduct.  The majority of Board members determined 
that the veteran's death was due to willful misconduct and 
that it did not, therefore, occur in the line of duty.

In his February 1989 request for reconsideration of the 
Board's November 1988 decision, the appellant's 
representative claimed that the evidence did not establish 
that the accident was due to operating the vehicle while 
under the influence of alcohol.  The representative also 
noted a number of purported discrepancies in the evidence, 
including the statements made by the passenger in the second 
vehicle regarding how he got out of the vehicle, the actual 
time at which the veteran left the apartment of a friend, the 
exact time and date on which the blood was drawn for the 
toxicology test, the absence of any photographs in the 
documents provided by the service department, and the absence 
of any posted speed at the site of the accident.

In the December 1989 reconsideration decision a panel of 
12 Board members considered all of the relevant information 
surrounding the circumstances and cause of the motor vehicle 
accident.  The Board found no obvious error in fact or law in 
the Board's November 1988 findings or determination.  The 
reconsideration panel found that the discrepancies claimed by 
the appellant and her representative involved relatively 
minor differences in a detailed investigation conducted by 
multiple agencies, none of which significantly affected the 
outcome.  The Board found no obvious error in the November 
1988 finding that the veteran's driving a vehicle at an 
excessive rate of speed while under the influence of alcohol 
was the cause of the accident, in that his blood alcohol 
level was determined to be 0.13 percent shortly after the 
accident.  In reliance on 38 C.F.R. §§ 3.1(m) and (n) and 
3.301, the Board denied the appellant's appeal on 
reconsideration.

In a statement received October 29, 1993, the appellant 
requested reopening of the previously denied claim.  In an 
October 1994 statement she asserted that, according to 
research she had conducted on the subject, the blood alcohol 
percentage attributed to the veteran at the time of his death 
could not be accurate because, following death, the blood 
alcohol level rose three to four times the amount present 
when death occurred.

During an October 1994 hearing the appellant testified that 
the blood for the alcohol test could not have been drawn in 
Germany on August 11, 1986, as stated on the laboratory 
report form, because the veteran's body was in the United 
States on that date.  She asserted that the driver of the 
second vehicle was intoxicated at the time of the accident.

In February 1995 the RO determined that new and material 
evidence had not been submitted to reopen the previously 
denied claim.  The appellant appealed that decision, and in 
February 1998 she submitted a May 1994 report from a medical 
examiner.  The medical examiner stated that, based on his 
expert opinion and after having examined the autopsy report, 
he found that it was not possible for an accurate blood 
alcohol test to be conducted due to the serious burns and 
rupturing of the internal organs.  He stated that alcohol and 
other toxins increased three to four times the original 
amount when death occurred in that manner.  

The appellant also provided testimony at a hearing before a 
member of the Board in February 1998.

As previously stated, in a June 1998 decision the Board found 
that the expert medical opinion received in February 1998 was 
new and material, and remanded the case to the RO for re-
adjudication of the issue of the appellant's entitlement to 
service connection for the cause of the veteran's death.  In 
a June 1998 administrative decision the RO determined that 
the veteran's death was not the result of willful misconduct 
and granted entitlement to service connection for the cause 
of the veteran's death and DIC benefits.

Following the grant of service connection for the cause of 
the veteran's death in June 1998, the appellant asserted 
clear and unmistakable error in the Board's prior decisions.  
In her June 1999 motion she asserted that 38 C.F.R. § 3.1(n) 
had been incorrectly applied in determining that the 
veteran's death was due to willful misconduct because the 
evidence did not show that the accident was caused by his 
gross and wanton negligence.  She also stated that there was 
no proof of how the accident actually occurred, and claimed 
that the accident could have been caused by the other driver.  
She also asserted that the correct facts were not before the 
Board at the time of the decision, in that the evidence 
submitted in 1998 showed that the veteran was not under the 
influence of alcohol when the motor vehicle accident 
occurred.  She also claimed, in reference to the dissenting 
opinion in the November 1988 and December 1989 decisions, 
that the evidence did not establish that the veteran's 
intoxication was the proximate cause of the accident.

The appellant's representative asserts that there is no 
conclusive evidence of record as to what actually caused the 
motor vehicle accident, and that the known facts did not 
support the conclusion that the veteran engaged in 
"deliberate or intentional wrongdoing with knowledge of or 
wanton and reckless disregard of its probable consequences."  
38 C.F.R. § 3.1(m).

II.  Laws and Regulations

A decision of the Board is final and binding and is not 
subject to revision on the same factual basis in the absence 
of clear and unmistakable error.  Where evidence establishes 
such error, the prior decision will be reversed or amended.  
38 U.S.C. § 4004(b), 38 U.S.C.A. § 7111.

Clear and unmistakable error is a very specific and rare kind 
of error.  It is the kind of error, of fact or of law, that 
when called to the attention of later reviewers compels the 
conclusion, to which reasonable minds could not differ, that 
the result would have been manifestly different but for the 
error.  Generally, either the correct facts, as they were 
known at the time, were not before the Board, or the 
statutory and regulatory provisions extant at the time were 
incorrectly applied.  38 U.S.C.A. § 7111; Damrel v. Brown, 6 
Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 
310 (1992); 38 C.F.R. § 20.1403(a).

Review for clear and unmistakable error in a prior Board 
decision must be based on the record and the law that existed 
when that decision was made.  To warrant revision of a Board 
decision on the grounds of clear and unmistakable error, 
there must have been an error in the Board's adjudication of 
the appeal that, had it not been made, would have manifestly 
changed the outcome when it was made.  If it is not 
absolutely clear that a different result would have ensued, 
the error complained of cannot be clear and unmistakable.  
Bustos v. West, 179 F3d. 1378 (Fed. Cir. 1999); 38 C.F.R. § 
20.1403(b) and (c) (emphasis added).

The following occurrences cannot constitute clear and 
unmistakable error:  1) a new medical diagnosis that corrects 
an earlier diagnosis considered in a Board decision; 2) VA's 
failure to fulfill the duty to assist; and 3) a disagreement 
as to how the facts were weighed or evaluated.  See Hayre v. 
West, 188 F3d. 1327 (Fed. Cir. 1999); see also Damrel, 6 Vet. 
App. at 242; 38 C.F.R. § 20.1403(d).

The motion to review a prior final Board decision on the 
basis of clear and unmistakable error must set forth clearly 
and specifically the alleged clear and unmistakable error, or 
errors, of fact or law in the Board decision, the legal or 
factual basis for such allegations, and why the result would 
have been manifestly different but for the alleged error.  
Non-specific allegations of failure to follow regulations or 
failure to give due process, or any other general, non-
specific allegations of error, are insufficient to satisfy 
this requirement.  Motions that fail to comply with these 
requirements shall be denied.  38 C.F.R. § 20.1404(b).

If the appellant fails to identify the specific error or does 
not show, assuming her allegations to be true, that the 
outcome of the case would have been manifestly different, the 
claim that a prior decision was based on clear and 
unmistakable error should be denied as a matter of law.  See 
Luallen v. Brown, 8 Vet. App. 92, 96 (1995).  If the 
appellant raises a valid claim of clear and unmistakable 
error, the question of whether a given decision was based on 
clear and unmistakable error is to be determined based on the 
facts of the case.  See Rivers v. Gober, 10 Vet. App. 469 
(1997).

According to the laws and regulations in effect in 1988, DIC 
benefits were payable to the veteran's surviving spouse, 
children, or parents if he died from a service-connected or 
compensable disability.  38 U.S.C. § 410.  Service connection 
could be granted for any disease or injury incurred in the 
line of duty and an injury or disease incurred during active 
service was deemed to have been incurred in the line of duty, 
unless the disease or injury was the result of the veteran's 
own willful misconduct.  38 U.S.C. §§ 105(a), 331; 38 C.F.R. 
§ 3.1(m).  

"Willful misconduct" was defined as an act involving 
conscious wrongdoing or a known prohibited action.  38 C.F.R. 
§ 3.1(n).  An injury or disease incurred during active 
military service was not deemed to have been incurred in the 
line of duty if such injury or disease was a result of the 
abuse of alcohol by the person on whose service benefits were 
claimed.  Alcohol abuse meant the use of alcoholic beverages 
over time, or such excessive use at any one time sufficient 
to cause disability to or the death of the user.  38 C.F.R. 
§ 3.301(d).  

III.  Analysis

In the November 1988 and December 1989 decisions, the Board 
found that entitlement to service connection for the cause of 
the veteran's death was not warranted.  The appellant was 
notified of those decisions at the times they were rendered.  
Because the appellant's appeal was initiated prior to 
November 18, 1988, the Board's decisions were not subject to 
appeal to the Court of Appeals for Veterans Claims (formerly 
the Court of Veterans Appeals).  The Veterans' Judicial 
Review Act, Pub. L. No. 100-527, 102 Stat. 2635 (1988) 
(codified at 38 U.S.C. Chapter 72).  The November 1988 and 
December 1989 decisions are, therefore, final.  38 U.S.C. 
§ 4004(b).

Because the November 1988 and December 1989 decisions are 
final, they can be revised only on a finding that the 
decisions were based on clear and unmistakable error.  38 
U.S.C.A. § 7111; 38 C.F.R. § 20.1406.  The Board finds that 
the appellant has failed to show that such error occurred.

The appellant has provided three reasons for her assertion 
that the prior Board decisions were clearly and unmistakably 
erroneous.  As an initial matter, she claims that 38 C.F.R. 
§ 3.1(n) was incorrectly applied in determining that the 
veteran's death was due to willful misconduct because the 
evidence did not show that the accident was caused by his 
gross and wanton negligence.  The evidence of record at the 
time of the decisions did show, however, and the Board found, 
that at the time of the accident the veteran was legally 
intoxicated, that he was traveling at an excessive rate of 
speed, and that his actions resulted in his own death and 
that of the second driver.  The Board found that, in 
accordance with 38 C.F.R. § 3.301(d), the injuries were due 
to willful misconduct and were not incurred in the line of 
duty.  The appellant has not stated clearly and specifically 
how the Board erred in making that finding.  Bustos, 179 F3d. 
at 1378 (to prove the existence of clear and unmistakable 
error, the appellant must show that an outcome-determinative 
error occurred); 38 C.F.R. § 20.1403(c).

The appellant also asserts that the correct facts were not 
before the Board at the time of the decisions, in that the 
evidence submitted in 1998 showed that the test results on 
which the Board had relied in determining that the veteran 
was under the influence of alcohol when the motor vehicle 
accident occurred were not valid.  The determination of 
whether a decision was based on clear and unmistakable error 
must, however, be based on the evidence that was in file at 
the time the decision was rendered; evidence submitted 
subsequent to the relevant decision cannot be considered.  
See Porter v. Brown, 5 Vet. App. 233 (1993); 38 C.F.R. § 
20.1403(b).  The report of the blood alcohol test, which was 
of record when service connection was previously denied, 
clearly showed that the veteran's blood alcohol level was 
above the percentage required for legal intoxication.  The 
evidence showing that the results of the blood alcohol test 
were not reliable was not received until after the relevant 
decisions, and cannot be considered in determining whether 
the prior final decisions were clearly and unmistakably 
erroneous.

The appellant also claims that the evidence did not establish 
that the veteran's intoxication was the proximate cause of 
the accident.  The evidence of record at the time of the 
decision indicated, however, that the veteran was traveling 
on a road he had previously traveled, no adverse driving 
conditions were found, and that for no other known reason he 
was traveling at a high rate of speed and his vehicle entered 
the oncoming line of traffic.  The Board considered this 
evidence, as well as the evidence indicating that he had not 
consumed a large amount of alcohol prior to his death, and 
concluded that the preponderance of the evidence showed that 
his intoxication was the proximate cause of the accident.  
The appellant's assertion constitutes a disagreement with how 
this evidence was weighed or interpreted, which cannot 
constitute a valid claim of clear and unmistakable error.  
See Baldwin v. West, 13 Vet. App. 1 (1999) (if it is not 
absolutely clear that a different result would have ensued, 
the error complained of cannot be clear and unmistakable).

For the reasons shown above the Board finds that the 
appellant has failed to raise a valid claim of clear and 
unmistakable error in the November 1988 or December 1989 
Board decisions in which service connection for the cause of 
the veteran's death was denied.  The Board has determined, 
therefore, that her claim of clear and unmistakable error 
should be denied as a matter of law.  Luallen, 8 Vet. App. 
at 96.


ORDER

The appellant's motion to establish clear and unmistakable 
error in the November 1988 and December 1989 decisions in 
which the Board denied entitlement to service connection for 
the cause of the veteran's death and DIC benefits is denied.




		
	N. W. Fabian
Acting Member, Board of Veterans' Appeals