BVA9504452 DOCKET NO. 93-09 490 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Whether the injuries the veteran sustained in a November 1990 motor vehicle accident were due to his own willful misconduct for the purpose of entitlement to nonservice-connected disability pension benefits. 3. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The veteran had active service from June 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has post-traumatic stress disorder as a result of service. He also contends that he is unable to pursue a substantially gainful occupation because he is permanently and totally disabled due to the combined effects of several disabilities. 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 veteran has not met his initial burden of submitting evidence to justify a belief by a fair and impartial individual that his claim for service connection for post- traumatic stress disorder is well-grounded, that the preponderance of the evidence indicates that the injuries the veteran sustained in a November 1990 motor vehicle accident were due to his own willful misconduct, and that the preponderance of the evidence is against granting a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. A current post-traumatic stress disorder is not shown by the evidence of record. 2. All relevant evidence necessary for an equitable disposition of the claim regarding whether the injuries sustained by the veteran in a November 1990 motor vehicle accident were due to his own willful misconduct and his pension claim has been obtained by the RO. 3. In November 1990, the veteran was struck by a motor vehicle, and he sustained multiple injuries. 4. The veteran was intoxicated when he stepped in front of the motor vehicle that struck him, and therefore, his injuries and any resulting impairment were the proximate result of his intoxication. 5. The veteran is 62 years old as he was born in December 1932. He completed two years of college, and he last work worked in November or December 1984 as a draftsman. 6. The veteran's ratable disabilities include a borderline personality disorder, colitis, hypertension, and a lumbosacral strain. 7. A 10 percent rating is warranted for the veteran's borderline personality disorder and lumbosacral strain, and noncompensable ratings are warranted for colitis and hypertension. The combined rating is 20 percent. 8. The veteran's disabilities, in light of his age, education, and occupational background, do not preclude him from pursuing a substantially gainful occupation. CONCLUSIONS OF LAW 1. The veteran has not submitted sufficient evidence to support a well-grounded claim for service connection for post-traumatic stress disorder. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 2. The injuries the veteran sustained in the November 1990 motor vehicle accident were due to his own willful misconduct, and therefore, the residuals of these injuries cannot be taken into account in reviewing his claim of entitlement to nonservice- connected disability pension benefits. 38 U.S.C.A. §§ 1521, 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.301 (1993). 3. The criteria for a permanent and total disability rating for pension purposes have not been met. 38 U.S.C.A. §§ 1502(a), 1521(a), 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for post-traumatic stress disorder and nonservice-connected pension benefits. The threshold issue is whether he has submitted evidence to support well-grounded claims, that is, claims which are plausible, as required by 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that he has not presented evidence to support a well-grounded claim for service connection for post-traumatic stress disorder. The Board further finds that he has presented evidence to support well-grounded claims regarding whether the injuries sustained by the veteran in a November 1990 motor vehicle accident were due to his own willful misconduct and for nonservice-connected pension benefits. The VA, in turn, has assisted him in fully developing the facts relevant to his well-grounded claims as required by 38 U.S.C.A. § 5107(a). The veteran contends that he has post-traumatic stress disorder due to an incident he witnessed during service in which two service personnel were struck and killed by a motor vehicle. He also contends that he is permanently and totally disabled due to injuries sustained when he was struck by a motor vehicle in November 1990. The veteran's service medical records are devoid of any complaints, symptoms, findings, or diagnosis of a physical or psychiatric disability. In November 1986, a VA general medical examination was conducted. During the examination, the veteran complained of diarrhea, a hearing loss, arthritis of the legs, and pain in the sacroiliac area. The findings were unremarkable. The diagnoses were chronic lumbosacral strain, and history of colitis, which was not presently active. In August 1988, the veteran received VA outpatient treatment after requesting medicine for headaches. The findings included blood pressure of 120/90. The diagnosis was hypertension. He also received VA outpatient treatment in September 1988 after complaining of difficulty sleeping. He reported that he drank alcohol in spurts, and that he drank quite a bit of tea. The diagnosis was alcohol dependence with sleep difficulty when not drinking. In November 1990, the veteran was struck by a motor vehicle according to an accidental injury report he submitted in September 1991. He also indicated in the report that alcohol had been involved. He also submitted a copy of an official Tulsa Police Department (TPD) motor vehicle accident report, dated in November 1990. The TPD report relates that the veteran had been intoxicated, had jaywalked in front of a motor vehicle, and the driver had been unable to avoid striking the veteran. In November 1990, the veteran was admitted to the Claremore Division of the Oklahoma Veterans Center for treatment of the injuries he sustained in the motor vehicle accident. According to the initial assessment, the veteran had sustained a left tibia fracture, a right ulnar radial fracture, and a right knee dislocation. He also received a tracheotomy due to respiratory failure. The clinical findings were unremarkable except for the aforementioned injuries and some disorientation as to the exact details of the accident. The diagnoses were right ulna radius fracture with internal fixation, right knee dislocation, left tibial plateau fracture, and tracheostomy due to post-pulmonary embolus and respiratory failure. In November 1991, a special VA neuropsychiatric examination was conducted. During the examination, the veteran reported that he had post-traumatic stress disorder because he had difficulty relating to women, difficulty securing employment, and drank excessively. The examiner found that the veteran appeared neat, pleasant, without emotional distress, and oriented in all spheres. Additional findings included coherent thought processes, a mildly depressed mood, and a flattened affect. The diagnoses were borderline personality disorder, and alcohol abuse, in remission. In addition, the examiner indicated that there was no evidence of post-traumatic stress disorder. I. Service Connection for Post-Traumatic Stress Disorder Service connection is granted for disabilities that result from a personal injury suffered sustained during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to warrant a grant of service connection, a claimant must show that he or she has a present disability. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The veteran's medical history shows no treatment for a psychiatric disability. Moreover, when he was most recently examined in November 1991, no post-traumatic stress disorder was found. Accordingly, no present post-traumatic stress disorder has been shown to exist by the evidence of record. Although the veteran claims that he incurred post-traumatic stress disorder as a result of service, he has not submitted any medical documentation to substantiate his claim as required to state a well-grounded claim. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Moreover, his diagnosis of his psychiatric state is not, without supporting evidence, sufficient to render his claim well-grounded as he has not submitted any evidence to show that he is competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Accordingly, the Board finds that the veteran's claim for service connection for post- traumatic stress disorder is not well-grounded. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. II. Willful Misconduct as to the November 1990 Motor Vehicle Accident Nonservice-connected disability pension benefits are payable when a veteran is permanently and totally disabled because of nonservice-connected disability unless the disability was the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1521(a); 38 C.F.R. § 3.301(b). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). In other words, willful misconduct means deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. Id. With respect to alcohol, the simple drinking of an alcoholic beverage is not, in and of itself, willful misconduct. 38 C.F.R. § 3.301(c)(2). If intoxication results proximately and immediately in disability because of drinking to enjoy intoxicating effects, the disability will be considered the result of the person's willful misconduct. Id. According to the official TPD accident report, the veteran attempted to jaywalk across a street while intoxicated, and was struck by a motor vehicle in November 1990. The veteran does not dispute that he was intoxicated or that he attempted to improperly cross the street. In the accidental injury report that he filed, he admitted that he had been intoxicated at the time of the accident. The evidence indicates that the veteran was struck and injured by a motor vehicle because his judgment had been impaired by the effects of alcohol. It does not show that any other factors contributed materially to the accident. The TPD accident report indicates that the driver of the motor vehicle was unable to avoid hitting the veteran. The Board finds, therefore, by a preponderance of the evidence that the injuries the veteran sustained when he was struck by a motor vehicle in November 1990 were due to a wanton and reckless disregard of the probable consequences of attempting to improperly cross a street while intoxicated. 38 C.F.R. § 3.1. The Board finds further by a preponderance of the evidence that the injuries sustained by the veteran as well as any residual impairment cannot be taken into account with respect to any claim for nonservice-connected disability pension benefits. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.301. The evidence is not so evenly balanced as to raise doubt with respect to any material issue. 38 U.S.C.A. § 5107(b). III. Nonservice-connected Pension Benefits Nonservice connected disability pension benefits are granted to veterans who are permanently and totally disabled due to a nonservice-connected disability or disabilities. 38 U.S.C.A. § 1521(a). A permanent and total disability rating for pension purposes will be granted if a disability rating is productive of a total schedular rating under the "average person" standard of pension eligibility, or the disability rating meets the schedular requirements for the assignment of a total disability rating under the "unemployability" standard of pension eligibility. According to the evidence, the veteran's ratable disabilities include a borderline personality disorder, colitis, hypertension, and lumbosacral strain. He also has injury residuals from a November 1990 motor vehicle accident, but as the Board found in Part II, above, the residuals cannot be considered for nonservice-connected disability pension benefits because they were due to his own willful misconduct. A 10 percent rating for colitis is assigned under the Schedule for Rating Disabilities (Schedule) when there are infrequent exacerbations. 38 C.F.R. § 4.114, Diagnostic Code 7323 (1993). During the November 1986 VA examination, the veteran's colitis was found to have been inactive. Later medical treatment reports are devoid of any complaints, symptoms, findings, or diagnosis of colitis. There is, therefore, no indication that he has infrequent exacerbations. Accordingly, a noncompensable rating is warranted for his colitis. A 10 percent rating for hypertension is assigned under the Schedule when diastolic pressure is predominately 100 or more. 38 C.F.R. § 4.102, Diagnostic Code 7101 (1993). During August 1988 VA outpatient treatment, the veteran's diastolic pressure was 90. Later medical treatment records do not reveal any complaints, symptoms, findings, or diagnosis of a cardiovascular disability. There is, therefore, no evidence that the veteran's diastolic pressure was predominately 100 or more. Accordingly, a noncompensable rating is warranted for his hypertension. A 10 percent rating for lumbosacral strain is assigned under the Schedule when there are slight subjective symptoms. A 20 percent rating contemplates muscle spasm on extreme forward bending and loss of lateral spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1993). Although the veteran complained of pain in the sacroiliac area during a November 1986 VA examination, later medical treatment reports are devoid of any complaints, symptoms, findings, or diagnosis of a lumbosacral strain. There is, therefore, no evidence that supports a rating in excess of 10 percent. A 10 percent rating for a borderline personality disorder is assigned under the Schedule when the symptoms are productive of mild social and industrial impairment. 38 C.F.R. §§ 4.20, 4.132, Diagnostic Code 9410 (1993). When the veteran was most recently examined at a VA medical facility in November 1991, the examiner found that the veteran was neat, pleasant, without emotional distress, and oriented in all spheres. Additional findings included coherent thought processes, a mildly depressed mood, and a flattened affect. A 10 percent rating is warranted for the veteran's personality disorder as the findings indicate that his symptoms approximate the criteria for the assignment of such rating. 38 C.F.R. § 4.7 (1993). With respect to the veteran's alcohol dependence, this condition is also considered the result of willful misconduct and thus may not be taken into account for VA pension purposes. 38 C.F.R. § 3.301. Based upon the foregoing ratings, a combined rating of 20 percent is in order for the veteran's disabilities. This disability rating does not reflect total disability under the "average person" standard of pension eligibility. 38 U.S.C.A. §§ 1502(a)(1), 1521(a); 38 C.F.R. § 4.15. The 20 percent disability rating also does not meet the schedular requirements for the assignment of a total disability rating under the "unemployability" standard of pension eligibility. 38 U.S.C.A. §§ 1502(a), 1521(a); 38 C.F.R. §§ 4.16, 4.17. A permanent and total disability rating for pension purposes may also be granted on an extraschedular basis if the disability requirements based on the percentage standards of the rating schedule are not met, but the veteran is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors. 38 C.F.R. § 3.321(b)(2). The veteran was born in December 1932 so he is sixty-two years old. His educational background includes two years of college, and his occupational background includes experience as a draftsman. His disabilities are productive of a combined rating of 20 percent, and therefore, mild social and industrial impairment. Although he has additional disabilities due to a November 1990 motor vehicle accident, such disabilities are precluded from consideration with respect to whether the veteran is permanently and totally disabled for pension purposes as they were sustained due to his own willful misconduct. Accordingly, it is only reasonable to conclude that the veteran's disabilities, in light of his age, education, and occupational background, do not preclude him from pursuing a substantially gainful occupation. 38 C.F.R. § 3.321(b)(2). Based upon the foregoing findings, the Board finds that the preponderance of the evidence is against granting a permanent and total disability rating for pension purposes. 38 U.S.C.A. §§ 1502(a), 1521(a); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17. The evidence is not so evenly balanced as to raise doubt with respect to any material issue. 38 U.S.C.A. § 5107(b). ORDER The claim for service connection for post-traumatic stress disorder is not well-grounded, and it is, therefore, dismissed. The injuries the veteran sustained in a November 1990 motor vehicle accident were due to his own willful misconduct, and therefore, the residuals of these injuries are precluded from consideration in any claim for nonservice-connected disability pension benefits. The appeal as to this issue is denied. Entitlement to a permanent and total disability rating for pension purposes is denied. WAYNE M. BRAEUER 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.