BVA9505555 DOCKET NO. 93-07 776 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether injuries sustained by the veteran in a motorcycle accident on October 9, 1991, were the result of his willful misconduct? REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The veteran and his girlfriend ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from November 1969 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) from a May 1992 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, in which it was determined that injuries sustained by the veteran in an October 1991 motorcycle accident were the result of his willful misconduct. In an August 1993 statement, the veteran's representative requested that further development be undertaken by VA concerning the veteran's claim for service connection for a nervous condition, including post-traumatic stress disorder (PTSD). The Board notes that this issue was previously denied by the RO in November 1990. The veteran was notified of that decision in a December 1990 letter; however, he did not initiate a timely appeal. As a result, new and material evidence must be submitted to reopen this claim. See 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1991). In August 1992, the veteran filed an application to reopen the previously denied claim, and during the course of this appeal, has submitted additional evidence which has not been considered by the RO. Therefore, this matter is referred to personnel there for further action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the injuries he sustained in an October 1991 motorcycle accident were not the result of his willful misconduct. He claims he fell from his motorcycle because of a defective accelerator throttle cable and due to the awkward alignment of railroad tracks that he was crossing at the time. He does not believe that the intoxicating effect of alcohol was the reason that he crashed, and his representative takes issue with the probative weight that was given to the findings contained in the police report, particularly the blood alcohol level that was listed. 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 shows that the veteran's injuries, sustained in an October 1991 motorcycle accident, were the result of his willful misconduct. FINDING OF FACT On the evening of October 9, 1991, while under the influence of alcohol, the veteran rode his motorcycle at an excessive speed, constituting willful misconduct, and such activity was the proximate cause of injuries he later sustained when he crashed. CONCLUSION OF LAW The injuries sustained by the veteran in a motorcycle accident on October 9, 1991, were the result of his own willful misconduct. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.1(n), 3.301 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background According to the police report, the veteran was injured on the evening of October 9, 1991, when he fell from his motorcycle while traveling at approximately 50 miles per hour in a 30 miles per hour zone. Witnesses to the accident said his motorcycle "bottomed out" just after having crossed some nearby railroad tracks, and veered to the right in a southeastern direction. He hit a curb, was thrown from his motorcycle, and rolled into the median of the road. He was unable to make a statement immediately after the accident due to the severity of his injuries, but a blood sampling showed that he had a blood-alcohol level of 0.334 percent when he crashed. On admission to a local hospital, his condition was listed as seriously life threatening. Due to the seriousness of his injuries, he was not arrested for driving while intoxicated. Alcoholic beverages were listed as the primary factor contributing to the accident. See explanatory information received by Hearing Officer on January 5, 1993. After his accident, the veteran underwent several months of extensive rehabilitative therapy and counseling, at VA and private facilities. Treatment records show that he sustained multiple wounds to his head and spine as a result of the accident which left him blind in both eyes. While being examined by a private psychologist in May 1992, the veteran admitted to consuming approximately one case of beer per day prior to his accident, as well as to smoking marijuana every day, and occasionally using cocaine. In February 1992, the veteran filed a claim for VA non-service- connected pension benefits, primarily due to injuries that he had earlier sustained in his motorcycle accident. While testifying at a January 1993 hearing, the veteran indicated that he did not go to work on the day of his motorcycle accident and that he could not remember whether he had eaten any food prior to his accident. He said he visited a bar on the night of his accident, but he did not remember either the length of time that he was there or the amount of alcohol that he consumed, although he acknowledged that he drank some beers. He did not remember what time he left the bar, but he said he went by a friend's house on the way home. He said the friend was not at home, so he proceeded in route to his house. He described the general location and circumstances which led to his accident, claiming that the accelerator throttle cable on his motorcycle malfunctioned (i.e., cut through a metal elbow and became stuck) and that the railroad tracks that he crossed were in an awkwardly aligned position. He said that, at one point, he used one hand to free the throttle linkage while steering his motorcycle with the other hand. He denied experiencing any problems with the throttle linkage prior to the time of the accident, and he said the motor had recently been rebuilt. He said he was familiar with the area where he crashed, having traveled this route on prior occasions, and that this area was isolated and not particularly well lit. In other testimony, the veteran said he attempted to have a mechanic examine the throttle linkage following the accident, but that, due to legal concerns, mechanics resisted. He claimed that a nurse (and MADD member-Mothers Against Drunk Driving) who treated him during his rehabilitation had told him that he could not have even gotten onto a motorcycle the night of the accident, much less operated one, if he in fact had a blood-alcohol level of that reported in the police report. He also said he had several years experience riding motorcycles. He also indicated his driver's license had been suspended on one occasion prior to the accident for drinking and driving. His girlfriend provided additional testimony supporting his claim, particularly with respect to the description of the accident scene. She had not witnessed the accident and had not known the veteran at that time. Three photo-graphs of the veteran's motorcycle were submitted, with particular interest being focused on the handle bar area and throttle linkage. II. Legal Analysis The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. All relevant facts have been properly developed and, therefore, VA's duty to assist him in developing evidence pertinent to his claim has been satisfied. Id. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge 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). Disability pension is not payable for any condition due to the veteran's own willful misconduct. When determining entitlement to non-service-connected benefits, the simple drinking of alcoholic beverage is not in and of itself willful misconduct. However, if, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability, the disability will be considered the result of the veteran's willful misconduct. 38 C.F.R. § 3.301(b) and (c)(2). This regulation also applies to abuse of drugs. See 38 C.F.R. § 3.301(c)(3). Although the consumption of alcohol, in and of itself, does not per se constitute willful misconduct, it does if it is later determined that it was the proximate cause of injury. In this case, a blood sample taken from the veteran shortly after his motorcycle accident disclosed that he had a blood alcohol level of 0.334 percent when he crashed. He acknowledged at his hearing that he had been drinking at a bar earlier that night and that he could not remember many events that took place during the evening (e.g., how much alcohol he actually consumed prior to riding his motorcycle, how long he was at the bar, what time he left, etc.). Although driving while impaired (DWI) when he crashed, the veteran was not arrested at the scene of the accident for this violation because of the severity of his injuries and the need for immediate medical attention. Records show that he was traveling well in excess of the posted speed limit when he crashed. His excessive consumption of alcohol, followed by the operation of a motor vehicle at excessive speeds, constituted a known prohibited act which, under the applicable regulatory authority, is defined as willful misconduct. Indeed, he had previously been penalized for drinking and driving, and must have known it was illegal. The only question remaining is whether the veteran's excessive consumption of alcohol on the night in question led to his injuries (i.e., was the proximate cause of them). The police report clearly attributes his accident to his excessive consumption of alcohol earlier that evening. Road conditions, such as the alignment of the railroad tracks, were not listed as a contributing factor, despite the veteran's contentions to the contrary. It is also interesting that the veteran's account of what occurred does not mesh with the findings listed in the police report. For example, he says the throttle cable stuck, requiring him to steer his motorcycle with one hand while freeing the cable with the other. However, accelerator defect or failure was not cited on the police report. On the photographs, there are arrows pointing to an area which appears to have been damaged. However, it appears that this damage could have been caused by the accident itself since the veteran fell while traveling at a high rate of speed (other components in this area, such as the rear view mirror, also appear to have been damaged). In the absence of expert testimony, the photographs are of no value. The veteran testified that he was familiar with the area where he crashed, having safely traveled this route on prior occasions. It defies logic for him to now say that the alignment of the railroad tracks was somehow a factor contributing to his accident since this was not a problem when previously traveling this route. The veteran and his representative take issue with the findings of the police report (particularly the blood alcohol level reported) and the probative value given this evidence by the RO. However, the Board believes this evidence has a high degree of probative value because there was no reason for the officer at the scene of the accident to fabricate information. On the other hand, the veteran's account of what happened is in direct contradiction with other testimony to the effect that he does not remember details of the accident. The Board has considered the veteran's statement that he was told by a nurse while undergoing rehabilitative therapy that he would not have been able to get onto, let alone operate, a motorcycle with a blood alcohol as high as 0.334 percent. A nurse may have the competency to comment on such a matter and make such a judgment. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). However, this nurse did not submit statements to this effect, and she did not testify at the veteran's hearing, so there is no way of ensuring that this was actually said. Merely for the veteran to say so is not sufficient. See Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sep. 12, 1994). For reasons similar to those described earlier in this decision, the testimony of the veteran's girlfriend is of little value. She primarily testified as to the danger posed by the awkward alignment of the railroad tracks that the veteran crossed. But, because the veteran had no problems traveling this route prior to his accident, it does not seem logical that the tracks would suddenly become unsafe (in the absence of excessive speed and intoxication). Further, she testified that she was not present when the veteran crashed and, for that matter, did not even know him at that time. Therefore, her testimony has little probative value. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The injuries sustained by the veteran in a motorcycle accident on October 9, 1991, were the result of his own willful misconduct; therefore, his appeal is denied. J. E. DAY 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.