Citation Nr: 0003571 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 96-03 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether injuries sustained in a July 5, 1993, motor vehicle accident were the result of willful misconduct. WITNESSES AT HEARING ON APPEAL Veteran and his mother ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from June 1990 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle Washington, which found that the injuries sustained by the veteran on July 5, 1993, were the result of his own willful misconduct. The veteran relocated during the pendency of the appeal and his file has been transferred to the St. Louis, Missouri, RO. The veteran's case was remanded to the St. Louis RO in February 1999 for further development. The requested development having been completed, the case is again before the Board for appellate review. FINDINGS OF FACT 1. The veteran had been drinking prior to an automobile accident in July 1993, he was intoxicated at the time of the accident, and his intoxication was the proximate cause of the accident. 2. Injuries sustained in a July 1993 accident were proximately caused by the veteran engaging in a course of action involving conscious wrongdoing and known prohibited action, with wanton and reckless disregard for its probable consequences, that is, driving his motor vehicle while impaired by alcohol. CONCLUSION OF LAW The injuries sustained by the veteran in a July 1993 automobile accident were the result of his own willful misconduct. 38 U.S.C.A. §§ 105, 1110 (West 1991); 38 C.F.R. §§ 3.1, 3.301 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking to establish that injuries incurred in a July 1993 automobile accident were not the result of his own willful misconduct. After reviewing the record, the Board finds that his claim is plausible; therefore, it is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, but no compensation shall be paid if the disability is the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (West 1991). 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 the injury, disease, or death. 38 C.F.R. § 3.1(n) (1999). The simple drinking of alcoholic beverages is not of itself willful misconduct. If, however, 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. 38 C.F.R. § 3.301(e)(2) (1999). In this case, in July 1993, the veteran was severely injured after his car drove off a bridge in Vancouver, British Columbia, Canada. His injuries included a closed head injury with mild intraventricular hemorrhage, encephalopathy secondary to the head injury, a right clavicular fracture, an apical pneumothorax, right Horner's syndrome, and diplopia secondary to trochlear nerve palsies. In support of his claim for service connection of these disorders the veteran essentially contends that his disabilities were not proximately caused by his consumption of alcohol, or that there is a reasonable doubt that his consumption of alcohol caused his injuries. The police report from the Deas Island Highway Patrol, British Columbia, noted that the veteran had a blood alcohol level of 51 millimoles per liter which converted to between 200 and 300 milligrams per 100 milliliters of blood. This converts to a blood alcohol level of between 0.2 and 0.3 grams per deciliter. The report listed the weather as dry and cloudy with the road surface as dry. The traffic was listed as light to moderate and overall driving conditions determined to be good. A statement from a witness was included. The witness said that he had observed the veteran's vehicle for some distance. The witness also said the driver of the veteran's vehicle tailgated others at high speed; drove at inconsistent speeds of between 100 and 140 kilometers per hour (KPH); rode the center line of the highway and prevented other vehicles from passing; pulled alongside other vehicles at a close distance, sometimes as close as two feet; passed and cut off vehicles; and wandered in and out of the traffic lanes. The accident occurred when the veteran's vehicle crossed the center line into the oncoming lane, went up over a curb and drove along a guardrail on a bridge. The veteran's vehicle went along the guardrail to a point where the guardrail was missing and then plunged off the bridge to the ground below, approximately 21 meters. When rescue personnel arrived at the scene of the accident, the veteran was the only person in the car. A post accident evaluation of the mechanical condition of the veteran's car concluded that the vehicle appeared, "...to have been in reasonably good mechanical condition for its age and mileage with no specific evidence of mechanical failure or malfunction having contributed to the accident." Finally, the report did say that, despite the high blood alcohol content (BAC), the police were not confident in regard to the chain of custody of blood samples and decided not to prosecute the veteran under what was termed "253(a)" and "(b)C.C." Records from Vancouver General Hospital indicate that on admission to the emergency room the veteran was noted to have extensive alcohol on his breath. The discharge summary records the veteran's blood alcohol level at the time of the motor vehicle accident as 55 millimoles per liter, and a laboratory study records the blood alcohol level as 51 millimoles per liter, although the laboratory report for the 51 millimoles value noted that the alcohol method was not for legal use. The veteran was subsequently transferred to Madigan Army Hospital at Ft. Lewis, Washington. He then underwent a period of recovery at both Madigan and at a VA facility until his discharge from service in December 1993. Associated with the claims file is a copy of the Army line of duty investigation report dated in 1993. The report cited to the medical evidence from Vancouver General Hospital and the police report. The report reflects that the veteran was notified of the investigation into his accident in July 1993 and that he was given an opportunity to provide evidence on his behalf, to include furnishing a written statement. The veteran did provide a statement wherein he said that he could not remember any of the details regarding his accident. The investigating officer included a statement where he had asked for the veteran's BAC level to be converted from the metric measure. He said that a chemist from Madigan Army Hospital provided a converted measure of 0.23502 for the veteran's BAC. The investigating officer concluded that the veteran's intentional misconduct or neglect were the proximate cause of his injuries. The finding was that the veteran's injuries were not incurred in the line of duty and due to misconduct. The veteran was apprised of the investigating officer's findings in August 1993 and offered an opportunity to provide a statement or evidence on his behalf. The veteran did not provide any additional evidence. The investigating officer submitted his final report, with the findings as noted, in September 1993 and it was approved by higher authority in October 1993. According to the veteran's DD 214, he was discharged by reason of a physical disability without severance pay. A copy of an Army Medical Evaluation Board, dated in August 1993, is included in the record. The board report noted the veteran's various disabilities and concluded that they were incurred while entitled to receive basic pay but made no finding in regard to a line of duty/willful misconduct determination. A copy of the message authorizing the veteran's discharge is also contained in the record. The message contained the information recorded on the DD 214 - discharge by reason of physical disability without severance pay. The veteran, and his mother, presented testimony at a hearing before the undersigned Board member in St. Louis in April 1997. The veteran submitted a copy of the police report and waived consideration by the agency of original jurisdiction. 38 C.F.R. § 20.1304(c)(1999). The representative stated that the police report indicated problems with the blood samples relative to determining the BAC and that the veteran was not prosecuted for driving while intoxicated (DWI). The veteran then testified that he did not remember the accident. He said that he had been stationed at Ft. Lewis. He indicated that he thought that is where he was on July 4th based on his mother's conversation with his unit executive officer (XO). He did not recall if anyone was with him when he drove into Canada. He really did not remember anything about the accident. He also did not recall any prosecution by the Army for his accident. The veteran said that when he went into the Army he began to drink beer. He said no one told him that it was wrong or tried to help him. In regard to his accident, the veteran said that, if he was as drunk as was reported, how did he make it to the Canadian border and pass through. He opined that if he had been drinking, he would have been stopped. On a previous trip, he and his friend had been made to get out of the vehicle while everything was inspected. He expected that the same thing would have occurred on the day when the accident occurred. The veteran's mother testified regarding what she learned about the veteran's accident after she arrived at the hospital in Canada and then at Ft. Lewis. She said that she had spoken with the veteran's XO upon her arrival at Ft. Lewis. The XO told her that he had spoken with the veteran on Sunday, July 4th in the afternoon. She said the XO indicated that the veteran had not been drinking, yet 6 to 6 1/2 hours later the appellant was in the accident. She also raised the issue of if the veteran was as intoxicated as indicated on the reports, how did he pass through the border check and then have the accident approximately 30 minutes later. She also noted the BAC inconsistencies and said that she thought the police report indicated that the vehicle was so badly damaged that they could not tell if mechanical failure was involved. She did not think the veteran's unit was having a picnic in honor of July 4th. She did say that she was told by one of the veteran's friends that they had gone to a car show off base. She further testified that she was told that they had walked around for a couple of hours and that the veteran had had one cup of beer. They then returned to the base so that the veteran could work on his car. She could not recall if the veteran's command had ever conducted a line of duty investigation. The veteran and his mother provided additional testimony regarding his current disabilities. The RO, in arriving at its administrative decision in March 1995, noted that a BAC of .10 established a presumption that a person is under the influence of intoxicating liquor. In this case, the available medical evidence points to two separate BAC test results that were significantly over .10. The Board notes that the Deas Island police declined to prosecute the veteran because of perceived problems with the chain of custody of the blood samples. Further, the Vancouver General Hospital records said that the alcohol method used to determine the .51 millimoles BAC was not for legal purposes. However, while the BAC levels were not used for criminal prosecution, they are still relevant and material evidence for the VA to use in making a determination regarding willful misconduct. Generally, in circumstances such as these, the military service involved conducts a line of duty investigation and renders a finding as to whether the individual's injuries were received in the line of duty or due to willful misconduct. The VA is generally bound by service determinations that an injury was not due to misconduct unless it is patently inconsistent with the facts and the requirements of laws administered by the VA. 38 C.F.R. § 3.1(n). Moreover, under 38 U.S.C.A. § 105(a) (West 1991), there is a presumption that an injury incurred during active military service will be deemed to have been incurred in the line of duty unless the injury was the result of the person's own willful misconduct or abuse of alcohol or drugs. Daniels v. Brown, 9 Vet. App. 348, 351 (1996). [I]n all cases[,] section 105 establishes a presumption in favor of a finding of line of duty. If the BVA finds that an exception does apply (in this case, willful misconduct), and denies the claim solely on the basis of such exception, the Board must establish that denial of the claim is justified by a preponderance of the evidence. Daniels, 9 Vet. App. at 351 (citing Smith v. Derwinski, 2 Vet. App. 241, 244 (1992)). As previously stated in the Board's September 1997 remand, British Columbia law provides that operation of a motor vehicle is prohibited by any person who has a BAC that exceeds 80 milligrams per 100 milliliters of blood (.08). See British Columbia Motor Vehicle Act §§ 88, 92, 92.1, 94, 220.1. Canadian federal law also prohibits a person with a BAC which exceeds 0.08 from being in the care and control of a motor vehicle. MARTINDALE-HUBBELL INTERNATIONAL LAW DIGEST, 19 British Columbia (1996). The Army line of duty investigation concluded that the veteran's BAC level was 0.23502, almost three times the Canadian legal limit, and that his intoxication was the proximate cause of his accident and his injuries. The report further concluded that the veteran's injuries were due to intentional misconduct. The veteran was discharged from service due to a physical disability but denied benefits because of his intentional misconduct. In this case, there is no objective evidence to show that the veteran had a BAC below .10. To the contrary, the evidence indicates a BAC of least twice that amount. The veteran, and his mother, have theorized that he could not have been as intoxicated as was indicated on the respective BAC tests and permitted to cross the Canadian border. However, the veteran can not remember crossing the border or what type of stop/inspection was done, if any. Further, the veteran, from all indications was alone and there are no other accounts available from witnesses from the veteran's perspective. The police report contains exceptionally credible evidence that the veteran operated his vehicle in an erratic manner. The witness statement provided to the police was never challenged by the veteran. The police report further indicated that there were favorable driving conditions and that following an examination of the veteran's car, no mechanical defects contributed to the accident. In contrast, the contrary statement offered by the veteran's mother's testimony is not supported by mechanic's findings. The Army line of duty investigation only supports a conclusion that the veteran's injuries were the result of his own willful misconduct. Thus, while the Board empathizes with the veteran's disabilities, based on the available evidentiary record, the Board must conclude that, based upon a preponderance of the evidence, his own actions resulted in injuries sustained while under the influence of intoxicating liquor. These actions involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences. Simply put, the evidence overwhelmingly establishes that intoxication on the part of the veteran was the proximate cause of the accident and his injuries. Hence, the Board concludes that the accident and the resulting injuries were a result of his own willful misconduct. 38 C.F.R. §§ 3.1, 3.301. In reaching this decision the Board considered the argument that if the veteran were as intoxicated as the reports state he would have been stopped at the Canadian border. This argument assumes, however, that Canadian customs officials actually noticed that the appellant was intoxicated at the time of crossing. Moreover, even assuming that the appellant was not intoxicated at the time he crossed the border the fact remains that the overwhelming scientific evidence points only to the conclusion that he was driving under the influence of alcohol at the time of his July 1993 accident. ORDER The injuries sustained by the veteran in a July 1993 automobile accident were the result of his own willful misconduct. The appeal is denied. DEREK R. BROWN Member, Board of Veterans' Appeals