BVA9501464 
DOCKET NO.  92-05 096     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Indianapolis,
Indiana

THE ISSUE

Entitlement to service connection for residuals of injuries
sustained in an April 1986 automobile accident.  This involves
the question of whether the injuries were incurred in the line of
duty or were a result of the veteran's own willful misconduct.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The appellant and the veteran

ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel

INTRODUCTION

The veteran had active service from April 1983 to February 1989.
An appeal has been taken from a February 1990 determination by
the Department of Veterans Affairs (VA) Regional Office
Indianapolis, Indiana, that service connection could not be
established for the injuries sustained by the veteran in an April
1986 automobile accident since they had not been incurred in the
line of duty but were a result of his own willful misconduct.
The case was initially before the Board of Veterans' Appeals
(Board) in June 1993 when it was remanded for further action.
The case is again before the Board for further appellate
consideration.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in substance, that the injuries sustained
by the veteran in the April 1986 automobile accident should not
be considered to have been a result of his own willful misconduct
since the weather and road conditions were contributing factors
in the accident.  It is further maintained that the blood alcohol
test was flawed and that the chain of custody involving the blood
alcohol test was broken.  It is asserted that the blood alcohol
sample was misplaced for several days.  It is further maintained
that the veteran was not afforded his right to counsel at the
time of the initial service department investigation of the
accident and the second investigation simply reiterated the
findings of the initial investigation.  It is also indicated that
at the time of his release from active duty the veteran received
a Good Conduct Medal which is inconsistent with the finding of
willful misconduct on his part in connection with the automobile
accident.

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 injuries sustained in the April 1986 automobile
accident were not incurred in the line of duty but were a result
of the veteran's own willful misconduct.  Thus, service
connection for residuals of those injuries is not warranted.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the appellant's appeal has been obtained by the regional
office.

2.  In April 1986, while serving on active duty, the veteran
sustained multiple injuries in an automobile accident, including
head trauma resulting in left hemiparesis and cognitive deficits.

3.  The veteran was operating his vehicle at a speed in excess of
the posted speed limit when it left the roadway and struck
several large boulders along the road.

4.  The evidence establishes that the veteran was intoxicated at
the time of the accident.  His blood alcohol level was .25 (250
milligrams per deciliter).

5.  The veteran's intoxication and excessive speed were the
proximate cause of the accident and the veteran's injuries.

CONCLUSION OF LAW

The injuries sustained in the April 1986 automobile accident were
not incurred in the line of duty but were a result of the
veteran's own willful misconduct.  Accordingly, service
connection for residuals of the injuries 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, 1991.  That is, the Board
finds that he has presented a claim which is plausible.  The
Board is also satisfied that all relevant facts regarding the
claim have been properly developed.

I.  Background

The record discloses that, in April 1986, while serving on active
duty, the veteran sustained multiple injuries in an automobile
accident, including head trauma, resulting in left hemiparesis
and cognitive deficits.

An initial investigation into the circumstances of the veteran's
accident was conducted by the service department in 1986.  The
records of the investigation contain a copy of the police traffic
accident report as well as statements by policemen who
investigated the accident as well as an occupant of the veteran's
vehicle and various witnesses.

The police traffic accident report indicates that the veteran had
been operating his vehicle on Sawmill Creek Road when it left the
roadway and struck several large boulders along the road.  The
accident occurred on April 19, 1986.

An investigating policeman stated that the vehicle tire marks
indicated that the vehicle had begun to leave the roadway at
Jamestown Drive.  The distance of the tire marks from where the
vehicle left the roadway to the point of impact was 419 feet
6 inches.

A report by another investigating policeman reflected interviews
with several witnesses as well as an occupant of the veteran's
vehicle.  [redacted], who resided on Jamestown Drive, stated
that she had heard a skidding and gravel throwing sound on the
highway.  She observed a yellow car fishtailing across the
Jamestown Drive exit. The right hand side of the vehicle was off
the side of the road in the gravel.  She watched the vehicle
continue that way past some mailboxes on Sawmill Creek Road and
then dig in and begin to roll as it threw gravel onto the paved
roadway.  She indicated that there was misty rain.  She stated
that the vehicle had been traveling fast and that it only took
seconds to be out of sight.

An interview with [redacted] reflected that he resided on Sawmill
Creek Road and that he had heard a car going toward town and
turned and saw it going by Jamestown Drive.  He stated that it
was going faster than the speed limit.  He thought that the
vehicle was traveling about 50 or 55 miles per hour.  He stated
that the pavement was wet and it was raining at the time of the
accident.

[redacted] indicated that he had been the first on the scene
following the accident.  He stated that he observed people
slumped inside the vehicle.  He indicated that when he reached
into the vehicle across the driver to check the pulse of a
passenger he smelled alcohol on the driver.

[redacted] indicated that he had assisted with the cutting of the
seat belt on the driver and the passenger in the left rear seat.
He stated that he could smell a strong odor of alcohol in the
vehicle and that, after they had removed the driver from the
vehicle and placed him on a stretcher, he could smell a strong
odor of alcohol on the veteran, who was the driver.

An interview with [redacted], who was the assistant fire
chief, reflected that when he arrived on the scene he observed
four people in the vehicle and they were all unconscious.  He
stated that he had not smelled any odor of alcohol on anyone but
had not really checked since he was too busy.  Based on the
amount of damage to the vehicle he estimated the speed of the
vehicle at the time of impact to be about 60 miles per hour.

The police report also reflects an interview with [redacted]
who had been an occupant in the vehicle.  She stated that she had
met the veteran on the night preceding the accident.  She could
not remember when they were picked up by the veteran but did
remember driving around and then stopping at a liquor store and
buying a pint of whisky.  She could not remember the accident but
did recall that they were driving very fast.  She estimated the
vehicle speed at 50 or 60 miles per hour or more.  She stated
that she had been in the front passenger's seat.  She related
that they had all been drinking out of some plastic cups and mugs
and that they had drunk the pint empty.

The police department offense report also reflects that the
investigating policemen searched the veteran's vehicle and found
a pint whisky bottle and a plastic mug on the rear seat.  There
was also a 1-liter empty whisky bottle in the rear trunk area and
empty beer bottles in the trunk.  The policemen examined the
brake pedal and throttle assembly and found them to be operative.

The police department offense report reflects an additional
interview with [redacted].  She stated that she had met the
veteran on April 16.  She stated that she had seen him on Friday
the 18th and had driven around with him a short time during the
day.  She again saw him that night.  She related that the veteran
had been drinking Friday night but she did not know how much.
She again saw him Saturday morning on the 19th.  At about
9:30 a.m., she and two friends and the veteran went riding in his
vehicle.  She stated that they drove around town until 11 a.m.,
and stopped at a liquor store.  The veteran bought a pint of
whisky, a six-pack of cola and some peanuts.  They continued to
drive around and began to drink the cola and whisky until about
11:45 a.m.  They then went to a house and after leaving the house
drove around and drank until the accident.  She stated that she
estimated the veteran's speed as 60 miles per hour or more and
that the accident happened so fast she did not remember it.  She
stated that she had drunk two plastic cups full of cola and
whisky and that the other individuals including the veteran had
been drinking.

The investigating policeman indicated that he had photographed
the speed sign in the vicinity of the accident and that the speed
limit was 40 miles per hour in the direction the veteran had been
traveling.

A supplemental report by the city police department reflects an
interview with [redacted].  She indicated that she had been
the second or third person to arrive at the accident scene at
about 12:45 p.m., on April 1986 but that she had not seen the
accident happen.  She related that it had been raining at the
time of the accident and she had noticed a sluice of water
running across Sawmill Creek Road, going from the hillside and
across the street toward the ocean right at the intersection of
Jamestown Bay Drive that could have caused or contributed to the
accident.

She indicated that she drove that particular stretch of Sawmill
Creek Drive frequently going to and from her home and that on the
morning of the accident the sluice of water had caused her to
twice lose control of the steering on her pickup truck while she
was driving at about 35 to 40 miles per hour.

The city police department supplemental report also reflects an
interview with [redacted].  She related that she had been
going to her home from town on Sawmill Creek Road on the day of
the accident and that there had been a car on her tail.  She had
speeded up hoping he would drop back and when she looked down at
her speedometer she realized she was going 50 so she slowed down
to 45.  The other driver whipped around her and kept on going
down the road.  She figured he was going at least 60 miles per
hour if not more, going around a curve and, from what she could
see, the car was a beige smallish car and there were four people
in the car.  About 20 minutes after that incident she had heard
sirens and she had later gone past the accident scene and the car
looked like the same car that had been tailgating her.

The service department investigation into the circumstances of
the accident also contains a laboratory report from a science
laboratory dated April 23, 1986, indicating that the veteran's
blood alcohol level had been .25.  The investigating officer
expressed opinions that the veteran's accident had not been
incurred in the line of duty but had been a result of misconduct
on his part.  These opinions were approved by subsequent
reviewing authorities.  However, in March 1987 a supplemental
investigation was ordered since the veteran had not been apprised
of his rights due to his comatose state, and there had been a
question as to the source of the blood alcohol sample.  In May
1987 a military lawyer was appointed counsel for the veteran with
instructions to exercise on his behalf all applicable rights of a
party.  A supplemental investigating officer was also appointed.

The supplemental investigative report is dated in July 1987.
Several supplemental findings of fact were recorded, including
findings that the veteran's blood alcohol level had been .25 and
that a person was considered to be legally intoxicated in the
State of Alaska if the blood alcohol exceeded .10.

The supplemental investigative report reflected an interview with
the laboratory director of the Sitka Community Hospital who
indicated that in the veteran's case the daily log had shown that
the blood and urine samples had been received at 6:59 p.m., on
April 19, 1986.  It was indicated that the samples were sent to
another laboratory for testing at 9 a.m., on April 21, 1986.  It
was indicated that the forwarding of the samples in the veteran's
case corresponded to the hospital's normal processing procedure.

The supplemental investigating officer also interviewed Lewis
Jamber, Ph.D (Analytical Chemistry), who was the toxicology
manager for the laboratory where the veteran's blood sample had
been sent.  He stated that it was possible for the measured level
in a sample to vary either up or down, possibly as much as
15 percent.  However, he stated that it was much more likely that
the measured level in a sample would decline rather than
increase.  He stated that while the results of the sample could
potentially increase, the likelihood of any significant increase
was extremely unlikely due to the short frame of the delay in the
veteran's case (two days).  He further indicated that it would
not have been possible for the original level to have been less
than .10.

The supplemental investigating officer expressed an opinion that
the veteran had been intoxicated at the time of the accident and
that his intoxication had been a significant factor in the injury
sustained by himself and his passengers.  He expressed an opinion
that the veteran's injuries had been not incurred in the line of
duty but had been due to his own misconduct.

In December 1987 the final reviewing authority found that the
veteran's injuries had been incurred as a proximate result of his
intoxication and gross negligence in operating his motor vehicle
recklessly and in an impaired condition and that the injuries
sustained were not incurred in the line of duty but were due to
his own misconduct.

The appellant and veteran testified at a hearing at the regional
office in September 1991.  The veteran related that he could not
recall any of the circumstances surrounding the accident.  The
appellant advanced arguments that were essentially to the same
effect as those set forth in the contentions portion of this
decision.

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
line of duty in the active military, naval or air service.
38 U.S.C.A. § 101(16).

An injury or disease incurred during service is generally
regarded to be in line of duty unless it was the result of the
veteran's own willful misconduct.  38 U.S.C.A. § 105(a);
38 C.F.R. § 3.301.

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 other 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 own willful misconduct. 38 C.F.R. § 3.301.

In this particular case, as indicated previously, the record
discloses that in April 1986, while serving on active duty, the
veteran sustained various injuries in an automobile accident,
including head trauma resulting in left hemiparesis and cognitive
deficits.

The service department investigation into the circumstances of
the accident which includes a State traffic accident report as
well as reports by investigating policemen and an occupant of the
vehicle and various witnesses reflects that the veteran was
operating his vehicle when it left the roadway and struck several
large boulders along the road.

The information of record further reflects that the serviceman
had been drinking prior to the accident.  A blood sample taken at
the private hospital where the veteran was hospitalized following
the accident was sent to a science laboratory and reflected a
blood alcohol level of .25.  Under the standards set forth by the
National Safety Council and other agencies, a blood alcohol level
of .10 or more creates a presumption of intoxication.  According
to the supplemental service department investigation, a person is
also considered to be legally intoxicated in the State where the
accident occurred if their blood alcohol exceeds that level.
Although the appellant has contended that the blood alcohol test
was flawed and that the chain of custody involving the test was
broken, he has provided no independent, objective evidence which
would substantiate this contention.  To the contrary, the
interview with the laboratory director of the hospital where the
veteran was hospitalized following the accident indicates that
the normal processing procedures for blood alcohol samples were
followed and that the blood alcohol sample tested at the science
laboratory was in fact that of the veteran.

The statements by the various witnesses, including an occupant of
the vehicle, also indicate that the veteran was traveling at a
speed well in excess of the maximum posted speed limit of
40 miles per hour at the time the accident occurred.  Although
there was some light rain at the time of the accident it has not
been shown that weather conditions contributed significantly to
the cause of the accident.  One witness indicated that a sluice
of water had been running across the roadway which she felt might
have caused or contributed toward the accident; however, this
would only be speculation.  There is also no indication of any
vehicle defect that may have contributed toward the accident.
The investigating policeman examined the vehicles brake pedal and
throttle assembly and found them to be operative.

The record also discloses that, since the veteran had been
comatose at the time of the initial service department
investigation and had not been afforded his rights as a party to
the investigation, a supplemental investigation was ordered and
he was assigned military counsel to act in his behalf.  The
record indicates that both the original and supplemental service
department investigative reports were thoroughly conducted and
there is no indication that the veteran was prejudiced in any
manner as a result of those investigations.

Even if the reported blood alcohol level of .25 is not considered
as an absolute measure of the veteran's intoxication, the
evidence establishes that the April 1986 accident and the
veteran's injuries were proximately caused by significant
drinking and excessive speed on the part of the veteran.  His
operation of his vehicle on a wet roadway at an excessive rate of
speed while he was under the influence of alcohol establishes a
wanton and reckless disregard of the probable consequences.
Under such circumstances, it follows that the accident and
injuries were not incurred in the line of duty but were a result
of his own willful misconduct.  38 C.F.R. §§ 3.1, 3.301.  Service
connection for the residuals of the injuries sustained in the
accident is therefore not in order.  38 U.S.C.A. §§ 101, 105.

The Board has carefully reviewed the entire record in this case;
however, the Board does not find the evidence to be so evenly
balanced that there is doubt as to any material issue.
38 U.S.C.A. § 5107.

ORDER

The injuries sustained in the April 1986 automobile accident were
not incurred in the line of duty but were a result of the
veteran's own willful misconduct.  Entitlement to service
connection for residuals of the injuries is therefore not
established.  The appeal 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.