Citation Nr: 0122520 Decision Date: 09/14/01 Archive Date: 09/19/01 DOCKET NO. 96-30 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for residuals of a fracture of the L4 vertebra and associated spinal cord injury. 2. Entitlement to additional special monthly compensation (SMC) based upon the need for the regular aid and attendance of the veteran's spouse. 3. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant. 4. Entitlement to a certificate of eligibility for assistance in the purchase of an automobile or other conveyance or special adaptive equipment. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from May 1992 to October 1995. This matter is on appeal to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board in January 1998 remanded the case to the RO for further development. Although the issues as stated on the title page are carried over from the Board remand for consistency, they are secondary to the overriding issue that will be discussed herein which is whether the injuries sustained in a July 1994 accident were incurred in line of duty and not the result of willful misconduct. Argument has been presented on this issue and the Board remand was intended to obtain additional evidence pertinent to the line of duty/willful misconduct determination. FINDINGS OF FACT 1. The veteran's climbing of a construction crane at night after consuming a significant amount of alcohol over a period of several hours was a deliberate wrongful act and a reckless disregard of its probable consequences; the act resulted in a fall of approximately 60 feet and the fracture of the L4 vertebra and associated spinal cord injury. 2. A service-connected disability to establish entitlement to SMC based on a need for regular aid and attendance, a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant, or a certificate of eligibility for assistance in the purchase of an automobile, other conveyance or special adaptive equipment, is not shown. CONCLUSIONS OF LAW 1. The disabilities from a fracture of the L4 vertebra and associated spinal cord injury the veteran sustained in July 1994 were the result of willful misconduct and not in line of duty. 38 U.S.C.A. §§ 105, 5107 (West 1991); Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 4, 114 Stat. 2096 (2000) (to be codified as amended at 38 U.S.C. § 5107); 38 C.F.R. §§ 3.1(k), (m), (n), 3.301 (2000), 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). 2. The criteria for entitlement to SMC based on a need for regular aid and attendance, a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant or a certificate of eligibility for assistance in the purchase of an automobile or other conveyance or special adaptive equipment have not been met as a matter of law. 38 U.S.C.A. §§ 1114, 2101, 2102, 2104, 3902 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.351, 3.808, 3.809, 3.809a (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background Section I of a Statement of Medical Examination and Duty Status (DA Form 2173) completed in July 1994 by a patient administration officer indicates the veteran had been admitted to a German hospital at 0130 on July 21, 1994 for injury of the back, head and neck. The accident details as reported on the statement were as follows: "PT CLIMBED UP ON A CRANE IN KITZINGEN, GE AT 0100 21 JUL 94 AND JUMPTED FROM 200 FEET." It was reported in the medical opinion section of the form that, based on a DA Form 2985 (Admission and Coding Information), he was not under the influence of alcohol or drugs, that the injury would not likely result in a claim against the government for future medical care and that the injury was incurred in line of duty. It was also reported that a blood alcohol test was not made. Section II of the form, completed by a unit commander or unit adviser in September 1994 noted that a formal line of duty investigation was required and that the veteran's injury was considered not to have been incurred in line of duty. In the space for details of the accident it was reported that the veteran was seen drinking in a local establishment and that later a civilian saw him at the top of a crane in Kitzingen. It was stated that he then either jumped or fell to the ground. The report of investigation for line of duty and misconduct status shows that the finding was not in line of duty due to own misconduct. The investigating officer reported on the evening of the injury the veteran was observed to have consumed 9 to 12 American beers prior to departing the barracks. This was followed by consumption of an unknown amount of German beer at a local bar that he left around 0100 the next morning. At about 0130 a German national observed him on top of a construction crane shouting "Jesus I love you" and that for "unknown reasons" the veteran fell approximately 60 feet and landed face down in the dirt. One of the German police officers at the scene detected an "odor of alcohol" emitting from the veteran. The investigating officer determined the veteran sustained his injuries without regard for his personal safety after consuming a large quantity of alcohol and falling from a construction crane and that this warranted a finding of not in line of duty due to own misconduct. The preliminary investigation completed several hours after the accident recorded the observations of witnesses and indicated the veteran sustained head, spine and abdomen injuries as a result of the fall and that he was transported by ambulance to a local hospital where he underwent multiple surgeries. It was also reported that a check of his room disclosed a despondence and pre-disposition to self-injury. This report also referenced the observations of unit personnel regarding his consumption of beer during the evening prior to the accident. The German police report indicated that the veteran was lying face down when the officer and witness approached him and that they noticed a strong odor of an alcoholic beverage. He was transported by ambulance and an emergency doctor. The witness reported having observed him climbing the crane almost up to the cabin and notified the police at that time. According to the report, the crane height was approximately 22 meters and the cabin was located in the top of the crane. The construction site was described as orderly marked and secured. In the report it was stated that as a result of the fall, he sustained various injuries including injury to the fourth lumbar vertebra, and it was assumed he would be paralyzed. The criminal investigation command report was completed a day after the accident. It was noted that the German witness heard the impact from the fall and found the veteran lying face down in the mud and screaming. The witness stated that he positioned the veteran's face to the side so he could breathe, and that the veteran did not move any of his extremities or say anything. Another German witness checked his pulse. In addition to summarizing the statements of unit members, the report noted that access to the crane was not restricted, that the temperature was approximately 65 degrees Fahrenheit, and that precipitation in the form of rain had occurred within the previous 24 hours, but the ground was dry at the time of examination. It was reported that a search of the veteran's desk and wall locker produced one handwritten note with miscellaneous ramblings that indicated despondence and pre-disposition to self-injury. It was also reported that a hospital nurse was unable to determine if a blood alcohol test was administered. Two unit members provided statements later in the morning after the accident. One, a roommate, stated that the veteran had consumed 12 beers in his presence from 1730 to around 2030 the previous evening. He was observed by another unit member drinking beer at a local bar at around 2300. A military hospital admission summary completed prior to the veteran's transfer to a VA medical facility shows he reportedly fell 66 feet from a construction crane and was taken to a German trauma center where he was found to have a fracture of the lumbar spine L4 among other injuries. The diagnoses included paraplegia and L4 fracture with subsequent stabilization both dorsally and ventrally. VA medical records show the veteran was hospitalized from August to December 1994 and the diagnoses included acute cauda equina injury secondary to a fall in July 1994, paraparesis, neurogenic bladder and bowel and traumatic brain injury. It was reported in the hospital summary that he said he initially went out with friends to a local club before the accident, and that on his way home ended up falling from a crane approximately 66 feet. He reported no memory of the entire day and it was noted that the reason he was on the crane was unclear. A VA examiner in December 1994 reported essentially the same diagnoses. Thereafter a military physical evaluation board report noted the diagnosis of status post fracture of the L4 vertebra with spinal cord injury. The contemporaneous medical board report noted a normal psychiatric clinical evaluation and no history of depression or nervous trouble, or ever having attempted suicide. The veteran's DD Form 214 shows that the reason for separation was disability not in line of duty. The veteran petitioned the Board for Correction of Military Records (BCMR). The BCMR in October 1998 denied his application upon finding that he had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. The BCMR considered his application and service medical records as well as all evidence or record and evidence, allegations and information presented by the appellant. The BCMR concluded that although evidence of the exact degree of intoxication was not of record, the evidence clearly established that his abuse of alcohol and reckless conduct without regard for personal safety led to his injury. The BCMR found regarding the contention of attempted suicide that there was no indication from the available records or information that this was more likely than not the scenario of events. His request for a determination of injury in line of duty was based on argument that a blood alcohol test was not done, and that there was no objective evidence of intoxication in the record. Further, that neither the first individual to arrive at the accident scene, nor the emergency room physician mentioned the smell of alcohol on his breath. In addition he asserted that the reports of his drinking were circumstantial and contradictory. According to the BCMR decision, the veteran's counsel, who is also his representative in this appeal, argued in essence, that the determination of intoxication was not explained; that personal opinion, conjecture or speculation was not a basis for determining a state of intoxication; that it had not been determined what injuries resulted from alcohol use verus possible cause by the assistance of bystanders, and that consideration should have been given to possible suicide attempt which would have weighed against the adverse line of duty determination. Criteria An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. Venereal disease shall not be presumed to be due to willful misconduct if the person in service complies with the regulations of the appropriate service department requiring the person to report and receive treatment for such disease. (b) The requirement for line of duty will not be met if it appears that at the time the injury was suffered or disease contracted the person on whose account benefits are claimed (1) was avoiding duty by deserting the service or by absenting himself or herself without leave materially interfering with the performance of military duties; (2) was confined under sentence of court-martial involving an unremitted dishonorable discharge; or (3) was confined under sentence of a civil court for a felony (as determined under the laws of the jurisdiction where the person was convicted by such court). (c) For the purposes of any provision relating to the extension of a delimiting period under any education-benefit or rehabilitation program administered by the Secretary, the disabling effects of chronic alcoholism shall not be considered to be the result of willful misconduct. 38 U.S.C.A. § 105. 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 C.F.R. § 3.1(k). In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was: (1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty. (2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge. (3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. 38 C.F.R. § 3.1(m). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. (See §§ 3.301, 3.302.) 38 C.F.R. § 3.1(n). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. For the purpose of determining entitlement to service- connected and nonservice-connected benefits the definitions in §§ 3.1 (m) and (n) of this part apply except as modified within paragraphs (c)(1) through (c)(3) of this section. The provisions of paragraphs (c)(2) and (c)(3) of this section are subject to the provisions of § 3.302 of this part where applicable. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under 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 willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. (See §§ 21.1043, 21.5041, and 21.7051 of this title regarding the disabling effects of chronic alcoholism for the purpose of extending delimiting periods under education or rehabilitation programs.) Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. VCAA of 2000 (hereafter VCAA), Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C. § 5107). Analysis Preliminary Matter: Duty to Assist The Board initially notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the VCAA of 2000, Pub. L. No 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions); see generally Holliday v. Principi, 14 Vet. App. 280 (2001). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000). 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). Where the law and regulations change while a case is pending, the version more favorable to the appellant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The Board is of the opinion that the new duty to assist law has expanded VA's duty to assist (e.g., by providing specific and expanded provisions pertaining to the duty to notify), and is therefore more favorable to the veteran. Therefore, the amended duty to assist law applied. Id. The Board finds that the duty to assist has been satisfied in this instance to the extent necessary to allow for an informed determination of the benefit sought on appeal; namely, whether injuries sustained in July 1994 were in line of duty and not the proximate result of willful misconduct as required under 38 U.S.C.A. § 105. There are no potential deficiencies in the duty to assist that could conceivably prejudice the appellant in this case at this stage of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Further, there is no need for any additional development before an informed determination can be made on the issue under review. The information recently obtained from the BCMR supplements the pertinent evidence previously assembled and substantially complied with the intent of the Board remand. Neither the representative nor the veteran has specified evidence not of record whether or not under VA control that would have a substantial impact on a decision in this matter. See, for example, Dixon v. Gober, 14 Vet. App. 168, 173 (2000). Extensive factual development was completed in this case and nothing has been brought to the Board's attention that is not of record but that would substantiate the claim. See Dela Cruz v. Principi, No. 99-158 (U.S. Vet. App. Aug. 21, 2001). The recently amended regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)) merely implement the VCAA provisions rather than conferring any additional rights. The representative has argued for the Board to defer a decision in this matter in light of the decision in Forshey v. Gober, 226 F.3d 1299 (Fed. Cir. 2000) (Circuit Court). The judgment entered was vacated and the opinion that accompanied the judgment was withdrawn. Forshey v. Principi, 239 F.3d 1224 (Fed. Cir. 2001). As will be discussed below, the Circuit Court had recently spoken on the matter of willful misconduct in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Further, the Circuit Court recently did not defer consideration of an appeal that involved the issue that would be reargued. See Brown v. Principi, 2001 U.S. App. LEXIS 3821 (Unpublished opinion). The representative argues that the Board should apply the clear and convincing evidence standard articulated in Forshey. However the Board disagrees since the opinion has been withdrawn and the applicable standard for willful misconduct determinations has been defined elsewhere as will be discussed below. See D'Amico v. West, 209 F.3d 1322 (Fed. Cir.2000), discussing Trilles v. West, 13 Vet. App. 314, 325- 27 (2000) and that the Board must apply currently the available legal standard in a matter. Willful misconduct In Allen, the Circuit Court observed that VA's past interpretation of "willful misconduct" as well as the limited legislative history of 38 U.S.C.A. §§ 105 and 1110, supported by inference that Congress intended an element of scienter, so as to distinguish between willful and involuntary causative acts. Thus VA regulations defined willful misconduct in terms of conscious wrongdoing, i.e., deliberate or intentional wrongdoing, or known prohibited action characterized as wanton or reckless. To bar compensation such acts must be the proximate cause of injury. 38 C.F.R. § 3.1(n). As provided in 38 C.F.R. § 3.302 a person of unsound mind is incapable of forming an intent (mens rea or guilty mind, which is an essential element of . . . willful misconduct). However, there is no evidence on file to support mental unsoundness having led to the accident. The medical records and investigation interviews outweigh plausible finding of attempted suicide even though the inference of a potential for self harm reportedly was gleaned from writings found in the veteran's quarters. For example, there is no diagnosis of a mental disorder and the veteran has not offered this as a mitigating circumstance. In fact his arguments have been directed to the proof of intoxication. The BCMR also rejected the argument of mental unsoundness and the Board concurs. The factors needed to sustain a claim of mental unsoundness under section 3.302 appear conspicuously absent in the record. The military investigators did not ignore the possibility of mental unsoundness when they questioned service comrades. Further, a medical board evaluation reported no history of attempted suicide. Nor has such evidence been offered at this time and the Board is left with the belief that the representative's argument is grounded in speculation. However, this Court has held that section 3.302 does not replace the requirement for medical nexus evidence. See, for example, Elkins (Willie) v. Brown, 8 Vet. App. 391, 396-98 (1995) regarding the need for medical evidence in such matters. The Circuit Court in Allen observed that in interpreting the phrase, the VA had long construed the term "willful misconduct" to refer to an act of conscious wrongdoing, involving elements of intent and voluntariness, implying not only a knowledge of a thing, but a determination with a bad intent to do it or to omit doing it. Thus previously VA defined the term as being "'malum in se' or 'malum prohibitum' if involving conscious wrongdoing or known prohibited action. It is the Board's belief that there is ample evidence to sustain the RO determination of willful misconduct. The regulation speaks in terms of conscious wrongdoing or known prohibited action with knowledge of or disregard of the probable consequences in defining willful misconduct. 38 C.F.R. § 3.1(n). Though not so precise as to specifically define every action that would constitute willful misconduct, the VA provisions have been sustained as not unduly vague and sufficiently articulated to permit understanding or compliance by anyone exercising ordinary common sense. Yeoman v. West, 140 F.3d 1443, 1448 (Fed. Cir. 1998). The Board is aware of the statutory line of duty presumption and the need for the evidence to preponderate against in line of duty. 38 U.S.C.A. § 105; Myore v. Brown, 9 Vet. App. 498, 505 (1996) and Smith (Cynthia) v. Derwinski, 2 Vet. App. 241, 244 (1990). It does not appear that the RO was arbitrary in its application of the regulation to the facts of this case. There are undisputed facts from the military record and his written argument that reasonably support a finding of willful misconduct. Although he does dispute the extent of his indulgence in alcohol preceding the accident, there is a witness recollection of his stated intention to consume appreciably at the time. There is also the witness who observed the extent of his consumption earlier in the evening. Thus, there is evidence of alcohol consumption, which the veteran does not dispute. He disputes the recollections of those who observed him during a period of time that he claimed to be unable to recall regarding the amount of an alcoholic beverage he consumed. The witnesses would suggest strongly that alcohol played a role in the accident and the veteran does not deny he was drinking. The Board has not overlooked the absence of a blood alcohol test to establish a level of intoxication and the argument that this is critical to support the determination of willful misconduct. The standard for intoxication as contemplated in the determination of willful misconduct is not clearly defined. 38 C.F.R. § 3.301. However, the Board need not determine whether the VA standard contemplates a precise blood alcohol level sufficient in many states to charge one with an offense, such as driving while intoxicated (.08%), or ingestion to the point of impairment with requite knowledge of impaired or diminished ability to act. See, for example, 165, 510, 514, 827 Black's Law Dictionary (7th ed. 1999). Determinative of willful misconduct in this case is the clear evidence of conscious wrongdoing with reckless disregard for the probable consequences, the absence of proof of intoxication to the level of an offense notwithstanding. The entry as to injury in line of duty entered on the DA Form 2173 was reportedly taken from a form used for admission and coding information. That information was completed the day of the accident and obviously did not include the investigation report that served as the basis for the formal line of duty determination. Thus the Board views this opinion as having no significant probative value. For example, there is the undisputed evidence that, after drinking during the evening, at or around 0100 hours the veteran climbed a construction crane, ascended to the cabin level, approximately 60 feet above the ground and jumped or fell to the ground. From this the Board finds that the circumstances surrounding the accident justify a finding of willful misconduct under VA standards. For example, the veteran had no justification for climbing the crane and he is charged with the knowledge that he should not have attempted to do so after drinking or, for that matter, at any time without undue risk to himself. His culpability is high given the circumstances surrounding the accident and the common sense regulatory standard applied to knowledge of wrongdoing. His statements and argument to the Board and the BCMR offer no mitigating factors to a finding of willful misconduct based on the known facts. The record compiled by the investigators at the time of the accident establishes clear and obvious circumstances to support willful misconduct. The climbing of a construction crane at night was clearly reckless conduct under any reasonable construction and the determination that such conduct was the proximate cause of his injuries is well supported. Cf. Yeoman, 140 F.3d at 1448; Myore, 9 Vet. App. at 506-07 and Smith (Cynthia), 2 Vet. App. at 246-47. His representative directs argument to the evidence regarding intoxication, a factor not determinative here in view of the undeniably reckless action that led to the injuries in July 1994. Under the pertinent regulation, willful misconduct is not determinative unless it is the proximate cause of injury. To argue against that finding in this case would appear to be against the substantial weight of the evidence. The representative argues that the veteran sustained some injuries as a result of being moved, but offers no evidence to support this assertion based upon the references to movement in the record. Apparently, one civilian took his pulse and another turned his head to facilitate breathing. The representative does not argue that such evidence exists. Thus, finding that willful misconduct was indeed the proximate cause of the injuries sustained in the July 1994 accident, the injuries are not in line of duty, and residual disability may not be service-connected. The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen this claim. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77- 78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for residuals of spinal cord fracture and associated injury which are shown to have been due to willful misconduct. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claims for SMC based on a need for regular aid and attendance, a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant or a certificate of eligibility for assistance in the purchase of an automobile or other conveyance or special adaptive equipment require a favorable determination regarding service connection for residuals of a fracture of the L4 vertebra and associated spinal cord injury. As the determination on the threshold basis for entitlement is not favorable, and there is no other basis for eligibility shown from the record, the claims must be regarded as legally insufficient since the requisite elements for eligibility to qualify for any of the benefits are not met. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C.A. §§ 1114(l), 2101(a), 2102, 2104, 3901, see also § 1521. ORDER Disabilities from injuries sustained in a fall were the result of willful misconduct and not incurred in line of duty, and the claims of service connection for residuals of a fracture of the L4 vertebra and associated spinal cord injury, additional SMC based upon the need for the regular aid and attendance of the veteran's spouse, a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant, and a certificate of eligibility for assistance in the purchase of an automobile or other conveyance or special adaptive equipment are denied. RONALD R. BOSCH Member, Board of Veterans' Appeals