Citation Nr: 0509080 Decision Date: 03/25/05 Archive Date: 04/01/05 DOCKET NO. 00-14 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether a June 1979 motorcycle accident was in the line of duty. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a foot disability. 5. Entitlement to service connection for a leg disability. 6. Entitlement to service connection for a shoulder disability. REPRESENTATION Appellant represented by: Antonio E. Bendezu, Attorney ATTORNEY FOR THE BOARD S. Kim, Counsel INTRODUCTION The veteran had active military service from April 1978 to April 1981. This appeal is before the Board of Veterans' Appeals (Board) from a November 1999 rating decision from the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for headaches, a back disability, a foot disability, a leg disability, and a shoulder disability. After a February 2003 Board decision denied entitlement to service connection for headaches, the veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2003 joint motion of the parties, the Court in November 2003 vacated the portion of the February 2003 Board decision that denied entitlement to service connection for headaches and remanded the matter to the Board for readjudication consistent with the joint motion. In July 2004, the Board remanded the case to comply with notice provisions of The Veterans Claims Assistance Act of 2000, which was accomplished in August 2004, and to obtain VA examinations for the veteran, which were accomplished in August 2004. This matter is now before the Board for appellate review. FINDINGS OF FACT 1. A June 1979 emergency room report documented that the veteran had been driving intoxicated with a blood alcohol level of 0.165 mg% at the time of a June 1979 motorcycle accident; the veteran admitted that he had been drinking alcohol earlier on the day of the June 1979 accident. 2. At a March 1981 separation examination, the veteran's head, neurological system, spine, lower extremities, and upper extremities were normal. 3. The evidence does not include a medical opinion that a current headaches disability resulted from the June 1978 unspecified head injury, the June 1979 motorcycle accident, or any other in-service event. 4. The veteran hit his head and received stitches on his chin and forehead as a result of a 1988 car accident, an incident which took place seven years after service. 5. The evidence does not include a medical opinion that a current back disability resulted from lifting weights in May 1979, the June 1979 motorcycle accident, the February 1981 parachute landing, having a branch fall on the veteran in 1981, or any other in-service event. 6. In June 1999, the veteran had a compression fracture at C7 due to a motor vehicle accident three years earlier, an incident which took place 15 years after service. 7. The evidence does not include a medical opinion that a current feet disability resulted from the June 1979 motorcycle accident, the August 1979 trauma to the left foot, the March 1981 "access" game, or any other in-service event. 8. The veteran slipped down a ladder, falling about 10 feet and landing on his right foot in an inverted position, which dislocated his right talus in September 1992, an incident which took place over ten years after service. 9. The veteran has no current leg disability. 10. The evidence does not include a medical opinion that a current leg disability resulted from the June 1979 motorcycle accident, the February 1981 parachute jump, or any other in- service event. 11. The evidence does not include a medical opinion that a current shoulder disability resulted from the June 1979 motorcycle accident, the February 1981 parachute jump, having a branch fall on the veteran in 1981, or any other in-service event. 12. The veteran fractured his right clavicle in a 1999 motorcycle accident, an incident which took place over 15 years after service. CONCLUSIONS OF LAW 1. The June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse and was not in the line of duty. 38 U.S.C.A. §§ 105, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.306 (2004). 2. Headaches were not incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 105, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.306 (2004). 3. A back disability was not incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 105, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.306, 3.307, 3.309 (2004). 4. A foot disability was not incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 105, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.306 (2004). 5. A leg disability was not incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 105, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.306 (2004). 6. A shoulder disability was not incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 105, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.306, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Fulfillment of VA's duty to assist and inform the veteran The claims may be adjudicated on the merits because the VA has fulfilled its duty to assist and inform the veteran in the development of the claims in compliance with The Veterans Claims Assistance Act of 2000. The VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the VA. 38 U.S.C.A. § 5103A (West 2002). The VA shall also notify the claimant and the claimant's representative, if any, of the evidence that is necessary to substantiate the claims, which evidence the claimant is to provide, which evidence the VA will attempt to obtain for the claimant, and the period of time in which the claimant is allowed to respond to notices. See 38 U.S.C.A. § 5103(a) (West 2002); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1348 (Fed. Cir. 2003). In May 1999, March 2000, and June 2002, the RO requested the veteran's service records, including a military line of duty determination regarding the June 1979 motorcycle accident. In November 1999 and December 2000, the National Personnel Records Center confirmed that it had no military line of duty determination records for the veteran. In August 2002, the RO made a formal finding of the unavailability of the military line of duty determination records and informed the veteran of the finding. The veteran also confirmed that he did not know if a police report was filed in connection with the June 1979 motorcycle accident, and he never responded to the RO's requests for information to help obtain a police report, if one existed. The RO's June 2002 and August 2002 letters offered the veteran the opportunity to present any records in his possession and told him that the VA would decide his claims based on the evidence of record. The RO obtained the veteran's service medical records and the medical records from the identified health care providers. The veteran received a VA neurological examination in August 2004 and a VA joints examination in August 2004. The veteran filed several lay statements with the RO. The veteran's July 2000 substantive appeal requested a travel Board hearing, and his attorney's December 2002 letter withdrew the request because the veteran had moved without leaving a forwarding address or telephone number. The veteran and his representative have not requested or filed a motion for a new hearing. Therefore, the Board will adjudicate the case based on the current evidence of record as though the veteran's request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d) (2004). The RO's May 1999, July 2001, June 2002, August 2002, and August 2004 letters, the Board's April 2003 and March 2004 letters, the April 2000 and October 2004 statements of the case, the September 2002 and October 2004 supplemental statements of the case, and the July 2004 Board remand informed the veteran of applicable laws and regulations, including applicable provisions of The Veterans Claims Assistance Act of 2000, the evidence needed to substantiate the claims, and which party was responsible for obtaining the evidence. In these documents, the VA informed the veteran that it would obtain the available records in the custody of federal departments and agencies and request medical records from the identified private health care providers. The veteran was informed that it was his responsibility to identify health care providers with specificity, that it was his responsibility to provide the evidence in his possession that pertained to the claims, and that it still remained his ultimate responsibility to obtain any lay statements and private medical evidence needed to support his claims. The RO's June 2002 and August 2002 notice letters and the Board March 2004 notice letter technically informed the veteran that he had 30 days, 10 days, and 90 days, respectively, in which to respond, but in the two years and nine months since June 2002, the two years and seven months since August 2002, and the one year since March 2004, the veteran has presented additional medical records and lay statements that will be considered in this appeal. It is obvious that the veteran understood that evidence presented more than 30 days after the June 2002, August 2002, and March 2004 notices would still be considered. The VA has fulfilled its duty to assist and inform the veteran. He was informed of new and applicable laws and regulations and of the evidence needed to substantiate the claims. He was told which party was responsible for obtaining the evidence and provided ample opportunity to present such evidence. The VA has obtained the identified pertinent records in its possession or confirmed the unavailability of such. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112, 117-121 (2004). Entitlement to service connection for headaches The veteran contends that he incurred a headaches disability in a June 1979 motorcycle accident, which he believes took place in the line of duty. Unfortunately, the evidence shows that the June 1979 motorcycle accident did not take place in the line of duty and that it is speculative as to when the veteran incurred his current headaches disability. For the veteran to establish service connection for headaches, the evidence must demonstrate that headaches were contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306. To establish direct service connection for headaches, the veteran must submit evidence of current headaches, show in-service diagnosis or treatment of headaches, and provide a nexus opinion by a medical professional relating the current headaches to active service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted only when the disability was not the result of the veteran's own willful misconduct or abuse of alcohol. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). The veteran will receive the benefit of the doubt as to whether he has a current headaches disability. A valid claim requires proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA diagnoses included chronic headaches in September 2003, post-traumatic headaches of mainly mixed-type in October 2003, migraine headaches in November 2003, and mixed cephalgia and chronic post-traumatic headaches in August 2004. VA treatment records also recorded no evidence of acute findings in September 1992, a normal computed tomography scan except for sinusitis findings in September 2003, a normal neurological examination in September 2003, a normal magnetic resonance imaging of the brain except for sinusitis findings in October 2003, a normal x-ray of the skull in April 2004, and a normal neurological examination in June 2004. Resolving all reasonable doubt in the veteran's favor, however, the veteran will be deemed to have a mixed-typed headaches disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2004). Service medical records showed that, at the April 1978 induction examination, the veteran's head and neurological system were normal, and the veteran denied a history of frequent or severe headaches. In July 1978, the veteran reported dizziness, blurred vision, and sinus headaches following an unspecified head injury a month earlier in June 1978. The headaches continued for 1-1/2 weeks, unrelieved by anything. The veteran experienced blurred vision, a sensation of having fluid in the eye, and a staggering gait. By the time of an October 1978 jump examination, the veteran's head and neurological system had returned to normal, and the veteran denied a history of frequent or severe headaches. According to June 1979 military emergency room and treatment reports, the veteran was in a motorcycle accident near Camp LeJeune, North Carolina on June 21, 1979, in which he presumably lost control of his motorcycle during rainy weather and was injured, including loss of consciousness. The force of the head-on crash into a tree was so great that it split the veteran's helmet. Physical examination revealed alcohol on the veteran's breath and that his blood alcohol level was 0.165 mg%. The veteran was admitted for observation, and over the ensuing 24 hours, he regained consciousness, and his vital signs cleared. The diagnoses included a concussion, but the veteran was neurologically intact with no lateralizing signs. The veteran was discharged to one week of light duty and told to return to the surgery if any new symptoms occurred. In December 1979, the veteran returned to the clinic for observation, and the diagnosis was a concussion. In October 1980, the veteran complained of having a headache everyday since the June 1979 motorcycle accident. At the March 1981 separation examination, the veteran's head and neurological system were deemed normal. Service connection for headaches cannot be granted because the evidence includes no medical opinion that current headaches resulted from an event in the line of duty. The August 2004 VA neurologist stated that it would require speculation to state whether the veteran's mixed-typed headaches, which are comprised of migraine headaches, post- traumatic headaches, and headaches of chronic sinus disease, began in service. The August 2004 VA neurologist was unable to link the veteran's current headaches disability to the June 1978 unspecified head injury, the June 1979 motorcycle accident, or any other in-service event. As a side note, in March 1993, the veteran reported being the driver in a 1988 car accident, an incident which took place 7 years after service. He had struck another car and been issued a citation. He claimed that his head had been banged up and that he had received stitches on the chin and forehead. In any event, the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse and was not in the line of duty. The June 1979 motorcycle accident was presumed to have resulted from the veteran's own willful misconduct and alcohol abuse because he was driving with a documented blood alcohol level of 0.165 mg% at the time of the accident. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. See 38 C.F.R. § 3.1(n); VA's Adjudication Procedure Manual M21-1, (M21-1), Part IV, Chapter 11, § 11.04(a). Alcohol abuse is the drinking of alcoholic beverages in an amount, over any period of time, sufficient to cause a disability or death. See 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(d); M21- 1, Part IV, Chapter 11, § 11.04(e). Certainly, the veteran has admitted that he was drinking alcohol the day of his motorcycle accident. In June 1999, many years after the fact, the veteran filed an accident report in which he admitted that he had been drinking alcohol earlier on the day of the June 1979 accident. According to the standards of the National Safety Council, United States Department of Transportation, and the Departments of the Army, the Navy, the Air Force, and the Defense Supply Agency, a blood alcohol percentage of .10 mg% or more establishes the presumption that the person was under the influence of intoxicating liquor. M21-1, Part IV, Chapter 11, § 11.04(c); Forshey v. Principi, 284 F.3d 1335, 1339 (Fed. Cir. 2003). Because the veteran's blood alcohol level was 0.165 mg%, he was presumed to have been intoxicated at the time of the June 1979 motorcycle accident. The veteran's willful misconduct was not the simple drinking of alcohol by itself. Rather, his misconduct was the willingness to achieve a drunken state and, while in this condition, to undertake the driving of a motorcycle, which he was physically and mentally unqualified to undertake because of alcohol. See M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. The veteran's actions in drinking alcohol before he got on his motorcycle showed his willingness to achieve a drunken state the day of the June 1979 motorcycle accident. Use of intoxicants may be considered in determining whether the veteran's manner of operation of a vehicle was so unreasonable and dangerous as to constitute a wanton and reckless disregard of the probable consequences. See M21-1, Part IV, Chapter 11, § 11.04(d). Certainly, it was unreasonable and dangerous for the veteran to drive a motorcycle while intoxicated. Even if headaches were incurred in the June 1979 motorcycle accident, and it has not been shown that they were, service connection cannot be granted because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse. 38 U.S.C.A. § 501; 38 C.F.R. § 3.301(c)(2). The Board is not persuaded by the veteran's argument that the June 1979 motorcycle accident was due to rainy conditions and wet pavement. Because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse, it could not have occurred in the line of duty. An injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the veteran's own willful misconduct or alcohol abuse. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). This means that any headaches that occurred as a result of the June 1979 motorcycle accident did not occur in the line of duty. The evidence is against the claim, and entitlement to service connection for headaches cannot be granted. 38 U.S.C.A. §§ 105, 1131, 1153, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.306; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Entitlement to service connection for a back disability The veteran contends that he incurred a back disability in a June 1979 motorcycle accident, which he believes took place in the line of duty, or in a February 1981 parachute jump or sometime in 1981 when a branch fell on him. Unfortunately, the evidence shows that the June 1979 motorcycle accident did not take place in the line of duty and that the veteran incurred his current back disabilities in a series of post- service accidents and post-service on-the-job injuries. For the veteran to establish service connection for a back disability, the evidence must demonstrate that a back disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306. To establish direct service connection for a back disability, the veteran must submit evidence of a current back disability, show in-service diagnosis or treatment for a back disability, and provide a nexus opinion by a medical professional relating the current back disability to active service. See Hickson, 12 Vet. App. at 253. To establish presumptive service connection for back arthritis, as a chronic disease, the veteran must present evidence of current back arthritis and show that it manifested to a compensable level within one year after separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted only when the disability was not the result of the veteran's own willful misconduct or abuse of alcohol. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). Certainly, the veteran has shown that he has a current back disability. Brammer, 3 Vet. App. at 225. VA and private diagnoses of the cervical spine included musculature ligamentous strain of the neck in June 1999, stable slight degenerative arthritis involving predominantly C5-C6 in August 2003, mild degenerative changes in August 2003, neck pain in April 2004 and August 2004, C6-7 right paracentral to posterolateral disc protrusion in April 2004, and cervical disk protrusion in June 2004 and October 2004. VA and private diagnoses of the thoracic spine included minimal degenerative changes in August 2002 and thoracic spine pain in February 2004. VA and private diagnoses of the lumbosacral spine included partial sacralization of L5 and minimal degenerative change at L4-5 in August 2002, low back pain consistent with degenerative disk disease in February 2004, and low back pain in April 2004, August 2004, and September 2004. The veteran also complained of back sprain in December 2003, back pain in January 2004, and increasing back pain in May 2004. The veteran has shown that he has a current back disability. Service medical records showed that, at the April 1978 induction examination, the veteran's spine exhibited mild scoliosis, which was not considered disabling, and that the veteran denied a history of recurrent back pain. At the October 1978 jump examination, the veteran's spine was normal, and he denied a history of recurrent back pain. In May 1979, the veteran complained of low back pain and stated that he lifted weights every once in a while. There was no noticeable deformity. The diagnosis was lower back discomfort. According to June 1979 military emergency room and treatment reports, the veteran was in a motorcycle accident near Camp LeJeune, North Carolina on June 21, 1979, in which he presumably lost control of his motorcycle during rainy weather and was injured. When the veteran regained consciousness, he complained of pain in his left upper back. Physical examination revealed alcohol on the veteran's breath and that his blood alcohol level was 0.165 mg%. The veteran was admitted for observation, and over the ensuing 24 hours, his vital signs cleared. Although the June 1979 x-rays of the cervical and thoracic spines were normal, the June 1979 diagnoses included a contusion of the upper back and parspinous muscle spasm of the left upper thorax. The veteran was discharged to one week of light duty, given a prescription for Tylox and Bacitracin ointment, and told to return to the surgery if any new symptoms occurred. In December 1979, the veteran was admitted for observation of his thoracic and lumbar spine because of complaints of pain following the June 1979 motorcycle accident, and the diagnosis was a contused back. In February 1981, the veteran had a hard landing during a parachute jump. He reported pain over the dorsal and lumbar spine while bending and sitting and experiencing pain that radiated to the right side from the midline of his back. The diagnosis was possible back strain. Ten days later, there were no obvious deformities. At the March 1981 separation examination, the veteran's spine was characterized as normal. Service connection for a back disability cannot be granted because the evidence includes no medical opinion that a current back disability resulted from an event in the line of duty. After reviewing the claims folder and noting that the contusion of the veteran's tailbone resolved with no sequelae after the February 1981 parachute jump, the August 2004 VA joints examiner opined that it was unlikely that the veteran's back pain was secondary to injuries sustained in service. The August 2004 VA joints examiner was unable to link the veteran's current back disabilities to lifting weights in May 1979, the June 1979 motorcycle accident, the February 1981 parachute landing, having a branch fall on the veteran in 1981, or any other in-service event. The August 2004 VA joints examiner opined that post-service jobs in hard labor such as lawn care, meatpacking, factory work, warehouse work, and housekeeping had aggravated the veteran's back condition. As a side note, the evidence showed that the veteran incurred his current back disabilities in a series of post-service job injuries. In March 1993, the veteran injured his back while trying to lift and reposition a heavy veteran at a post- service job at the Nebraska Veteran's Home, an incident which took place over ten years after service. In April 1993, the veteran reinjured his back while lifting another veteran at the same job. In August 1993, the veteran saw a private orthopedist for back pain, which he had experienced off and on since he injured himself while working at the Nebraska Veteran's Home. He was working for a food services company a week earlier, pulling some products from a slot, when he started having back pain. He continued working that day but the next morning had a lot of spasm and pain and difficulty with moving. The diagnosis was mechanical lower back pain and lumbar sprain. In February 1995, the veteran saw a private chiropractor for left low back pain. He said that these sensations started four weeks ago when he was lifting sand buckets at work. The private chiropractor opined that the veteran was suffering from sub-acute lumbosacral strain injury with associated lumbar segmental dysfunction resulting in his low back pain. In June 1999, the veteran saw a private examiner for evaluation of his right cervical spine. He had a compression fracture at C7 due to a motor vehicle accident three years ago. He had done well in the interim but more recently had been having trouble, which he believed was exacerbated by some of the work that he performed at the VA. The diagnosis was musculature ligamentous strain of the neck. In November 2003, the veteran reported trying to work at an overhead door place but having to quit because the job was hurting his back. In December 2003, the veteran reported that he had been working more lately, which had caused an increase in back pain. He now experienced constant burning pain in the upper back area between his shoulder blades, for which he took Tylenol and Naproxsyn. The December 2003 diagnosis was back sprain. In April 2004, the veteran complained of low back pain, neck pain, and pain between his shoulder blades. He reported having an accident in service and then multiple labor jobs, which he said contributed to his chronic pain. The April 2004 VA diagnosis was chronic pain. An April 2004 magnetic resonance imaging of the cervical spine revealed C6-7 right paracentral to posterolateral disc protrusion. In May 2004, the veteran complained of increasing back pain and having severe pain in all of his joints. Noting that significant complaints of back pain started after some injuries at post-service jobs, the August 2004 VA joints examiner opined that post-service jobs in hard labor such as lawn care, meat packing, factory work, warehouse work, and housekeeping had aggravated the veteran's back condition. In any event, the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse and was not in the line of duty. The June 1979 motorcycle accident was presumed to have resulted from the veteran's own willful misconduct and alcohol abuse because he was driving with a documented blood alcohol level of 0.165 mg% at the time of the accident. See 38 C.F.R. § 3.1(n); M21-1, Part IV, Chapter 11, § 11.04(a), (e); 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(d). Certainly, the veteran has admitted that he was drinking alcohol the day of his motorcycle accident. In June 1999, many years after the fact, the veteran filed an accident report in which he admitted that he had been drinking alcohol earlier on the day of the June 1979 accident. Because the veteran's blood alcohol level was 0.165 mg%, he was presumed to have been intoxicated at the time of the June 1979 motorcycle accident. M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. The veteran's actions in drinking alcohol before he got on his motorcycle showed his willingness to achieve a drunken state the day of the June 1979 motorcycle accident. See M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. Certainly, it was unreasonable and dangerous for the veteran to drive a motorcycle while intoxicated. See M21-1, Part IV, Chapter 11, § 11.04(d). Even if a back disability was incurred in the June 1979 motorcycle accident, and it has not been shown that it was, service connection cannot be granted because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse. 38 U.S.C.A. § 501; 38 C.F.R. § 3.301(c)(2). The Board is not persuaded by the veteran's argument that the June 1979 motorcycle accident was due to rainy conditions and wet pavement. Because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse, it could not have occurred in the line of duty. An injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the veteran's own willful misconduct or alcohol abuse. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). This means that any back disability that occurred as a result of the June 1979 motorcycle accident did not occur in the line of duty. The evidence is against the claim, and entitlement to service connection for a back disability cannot be granted. 38 U.S.C.A. §§ 105, 1131, 1153, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.306, 3.307, 3.309; Gilbert, 1 Vet. App. at 54-55. Entitlement to service connection for a foot disability The veteran contends that he incurred a foot disability in a June 1979 motorcycle accident, which he believes took place in the line of duty, or in a March 1981 game in service. Unfortunately, the evidence shows that the June 1979 motorcycle accident did not take place in the line of duty and that the veteran incurred his current foot disability in a post-service accident. For the veteran to establish service connection for a foot disability, the evidence must demonstrate that a foot disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306. To establish direct service connection for a foot disability, the veteran must submit evidence of a current foot disability, show in-service diagnosis or treatment for a foot disability, and provide a nexus opinion by a medical professional relating the current foot disability to active service. See Hickson, 12 Vet. App. at 253. Service connection may be granted only when the disability was not the result of the veteran's own willful misconduct or abuse of alcohol. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). Certainly, the veteran has shown that he has a current foot disability. Brammer, 3 Vet. App. at 225. VA and private diagnoses included open dislocation of the talus in September 1992, status post subtalor dislocation in February 1993, and pes planus, bunion deformities, and bilateral hallux valgus deformity in August 2004. Service medical records showed that, at the April 1978 induction and at the October 1978 jump examinations, the veteran's lower extremities were normal, and the veteran denied a history of foot trouble. According to June 1979 military emergency room and treatment reports, the veteran was in a motorcycle accident near Camp LeJeune, North Carolina on June 21, 1979, in which he presumably lost control of his motorcycle during rainy weather and was injured. When the veteran regained consciousness, he complained of pain in other parts of his body but never mentioned his feet. Physical examination revealed alcohol on the veteran's breath and that his blood alcohol level was 0.165 mg%. The veteran was admitted for observation, and over the ensuing 24 hours, his vital signs cleared. There was no diagnosis regarding the feet. The veteran was discharged to one week of light duty and told to return to the surgery if any new symptoms occurred. In August 1979, the veteran complained of trauma to the left foot. He had no history of previous injury, but the diagnosis was trauma to the left phalanges. In October 1979, the veteran had a wart on the right foot, and he was referred to the podiatry clinic. At the March 1981 separation examination, the veteran reported injuring his left foot while playing "access." The trauma apparently pushed his toe backwards, and discoloration was noted. The March 1981 examination report stated that the veteran's lower extremities were normal. Service connection for a foot disability cannot be granted because the evidence includes no medical opinion that a current foot disability resulted from an event in the line of duty. As the August 2004 VA examiner clearly noted, the veteran's subtalor dislocation had obviously occurred after service. In September 1992, the veteran had seen a private orthopedist for an open dislocation of his talus. He had slipped down a ladder, falling about 10 feet and landing on his right foot in an inverted position, which dislocated his right talus and forced him to undergo surgery for irrigation and debridement. The August 2004 VA joints examiner opined that the veteran's current foot pain was related to bilateral pes planus and hallux valgus, which were likely congenital and in no way related to military service. The August 2004 VA joints examiner was unable to link the veteran's current foot disabilities to the June 1979 motorcycle accident, the August 1979 trauma to the left foot, the March 1981 "access" game, or any other in-service event. The August 2004 VA joints examiner opined that post-service jobs in hard labor such as lawn care, meatpacking, factory work, warehouse work, and housekeeping rather than any in-service event had aggravated the veteran's preexisting feet condition. In any event, the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse and was not in the line of duty. The June 1979 motorcycle accident was presumed to have resulted from the veteran's own willful misconduct and alcohol abuse because he was driving with a documented blood alcohol level of 0.165 mg% at the time of the accident. See 38 C.F.R. § 3.1(n); M21-1, Part IV, Chapter 11, § 11.04(a), (e); 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(d). Certainly, the veteran has admitted that he was drinking alcohol the day of his motorcycle accident. In June 1999, many years after the fact, the veteran filed an accident report in which he admitted that he had been drinking alcohol earlier on the day of the June 1979 accident. Because the veteran's blood alcohol level was 0.165 mg%, he was presumed to have been intoxicated at the time of the June 1979 motorcycle accident. M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. The veteran's actions in drinking alcohol before he got on his motorcycle showed his willingness to achieve a drunken state the day of the June 1979 motorcycle accident. See M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. Certainly, it was unreasonable and dangerous for the veteran to drive a motorcycle while intoxicated. See M21-1, Part IV, Chapter 11, § 11.04(d). Even if a feet disability was incurred in the June 1979 motorcycle accident, and it has not been shown that it was, service connection cannot be granted because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse. 38 U.S.C.A. § 501; 38 C.F.R. § 3.301(c)(2). The Board is not persuaded by the veteran's argument that the June 1979 motorcycle accident was due to rainy conditions and wet pavement. Because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse, it could not have occurred in the line of duty. An injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the veteran's own willful misconduct or alcohol abuse. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). This means that any feet disability that occurred as a result of the June 1979 motorcycle accident did not occur in the line of duty. The evidence is against the claim, and entitlement to service connection for a feet disability cannot be granted. 38 U.S.C.A. §§ 105, 1131, 1153, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.306; Gilbert, 1 Vet. App. at 54-55. Entitlement to service connection for a leg disability The veteran contends that he incurred a leg disability in a June 1979 motorcycle accident, which he believes took place in the line of duty, or in a February 1981 parachute jump. The evidence shows that the June 1979 motorcycle accident did not take place in the line of duty and that the veteran does not have a current leg disability. For the veteran to establish service connection for a leg disability, the evidence must demonstrate that a leg disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306. To establish direct service connection for a leg disability, the veteran must submit evidence of a current leg disability, show in-service diagnosis or treatment for a leg disability, and provide a nexus opinion by a medical professional relating the current leg disability to active service. See Hickson, 12 Vet. App. at 253. Service connection may be granted only when the disability was not the result of the veteran's own willful misconduct or abuse of alcohol. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). Service connection cannot be granted because the veteran has not shown that he has a current leg disability. In the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The August 2004 VA x-rays of the right and left femurs, tibias and fibulas, and bilateral knees were all normal, with no bone, joint, or soft tissue abnormality. Service medical records showed that, at the April 1978 induction and at the October 1978 jump examinations, the veteran's lower extremities were normal and that the veteran denied a history of "trick" or locked knee. According to June 1979 military emergency room and treatment reports, the veteran was in a motorcycle accident near Camp LeJeune, North Carolina on June 21, 1979, in which he presumably lost control of his motorcycle during rainy weather and was injured. When the veteran regained consciousness, he complained of pain in his right knee. Physical examination revealed alcohol on the veteran's breath and that his blood alcohol level was 0.165 mg%. The veteran was admitted for observation, and over the ensuing 24 hours, his vital signs cleared. The June 1979 emergency room report documented tenderness over the right knee; however, the veteran had full range of motion and examination of the bone revealed no laxity in the collateral ligaments, cruciate and McMurray's sign were negative. There was no evidence of effusion. The June 1979 x-ray of the right knee revealed no bony abnormalities. The June 1979 diagnoses included a meniscus injury and a contusion of the right knee. The veteran was discharged to one week of light duty, given a prescription for Tylox and Bacitracin ointment, and told to return to the surgery if any new symptoms occurred. In July 1979, the veteran was still complaining of right knee and thigh symptoms. At the March 1981 separation examination, the veteran's lower extremities were normal. Even if there were a current leg disability, which there is not, service connection for a leg disability cannot be granted because the evidence includes no medical opinion that a current leg disability resulted from an event in the line of duty. Noting that the right knee contusion resolved after the June 1979 motorcycle accident, the August 2004 VA joints examiner opined that the veteran's lower extremity pain was not related to the June 1979 motorcycle accident or the February 1981 parachute landing. The August 2004 VA joints examiner was unable to link the veteran's current leg pain to any other in-service event. In any event, the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse and was not in the line of duty. The June 1979 motorcycle accident was presumed to have resulted from the veteran's own willful misconduct and alcohol abuse because he was driving with a documented blood alcohol level of 0.165 mg% at the time of the accident. See 38 C.F.R. § 3.1(n); M21-1, Part IV, Chapter 11, § 11.04(a), (e); 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(d). Certainly, the veteran has admitted that he was drinking alcohol the day of his motorcycle accident. In June 1999, many years after the fact, the veteran filed an accident report in which he admitted that he had been drinking alcohol earlier on the day of the June 1979 accident. Because the veteran's blood alcohol level was 0.165 mg%, he was presumed to have been intoxicated at the time of the June 1979 motorcycle accident. M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. The veteran's actions in drinking alcohol before he got on his motorcycle showed his willingness to achieve a drunken state the day of the June 1979 motorcycle accident. See M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. Certainly, it was unreasonable and dangerous for the veteran to drive a motorcycle while intoxicated. See M21-1, Part IV, Chapter 11, § 11.04(d). Even if a leg disability was incurred in the June 1979 motorcycle accident, and it has not been shown that it was, service connection cannot be granted because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse. 38 U.S.C.A. § 501; 38 C.F.R. § 3.301(c)(2). The Board is not persuaded by the veteran's argument that the June 1979 motorcycle accident was due to rainy conditions and wet pavement. Because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse, it could not have occurred in the line of duty. An injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the veteran's own willful misconduct or alcohol abuse. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). This means that any leg disability that occurred as a result of the June 1979 motorcycle accident did not occur in the line of duty. The evidence is against the claim, and entitlement to service connection for a leg disability cannot be granted. 38 U.S.C.A. §§ 105, 1131, 1153, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.306; Gilbert, 1 Vet. App. at 54-55. Entitlement to service connection for a shoulder disability The veteran contends that he incurred a shoulder disability in a June 1979 motorcycle accident, which he believes took place in the line of duty, or in a February 1981 parachute jump or at some other time in 1981 when a branch fell on him. The evidence shows that the June 1979 motorcycle accident did not take place in the line of duty and, in any event, that the veteran incurred his current shoulder disability after service. For the veteran to establish service connection for a shoulder disability, the evidence must demonstrate that a shoulder disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306. To establish direct service connection for a shoulder disability, the veteran must submit evidence of a current shoulder disability, show in-service diagnosis or treatment for a shoulder disability, and provide a nexus opinion by a medical professional relating the current shoulder disability to active service. See Hickson, 12 Vet. App. at 253. To establish presumptive service connection for shoulder arthritis, as a chronic disease, the veteran must present evidence of current shoulder arthritis and show that it manifested to a compensable level within one year after separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted only when the disability was not the result of the veteran's own willful misconduct or abuse of alcohol. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). The veteran will receive the benefit of the doubt as to whether he has a current shoulder disability. Brammer, 3 Vet. App. at 225. VA and private diagnoses included left acromion clavicular sprain with myositis/tendonitis in August 1992, myositis of the right shoulder in February 1997, myositis between the spine and scapular on the left side in October 1997, and mild acromioclavicular arthritis bilaterally in August 2004. Diagnoses also included shoulder strain resolved in March 1996 and a healed clavicle fracture on the right and normal bilateral shoulders with no bone, joint, or soft tissue abnormality in August 2004. Resolving all reasonable doubt in the veteran's favor, however, the veteran will be deemed to have a shoulder disability. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service medical records showed that, at the April 1978 induction and at the October 1978 jump examinations, the veteran's upper extremities were normal and that the veteran denied a history of painful or "trick" shoulder. According to June 1979 military emergency room and treatment reports, the veteran was in a motorcycle accident near Camp LeJeune, North Carolina on June 21, 1979, in which he presumably lost control of his motorcycle during rainy weather and was injured, including documented abrasions over the left shoulder. When the veteran regained consciousness, he complained of pain in his left shoulder. Physical examination revealed alcohol on the veteran's breath and that his blood alcohol level was 0.165 mg%. The veteran was admitted for observation, and over the ensuing 24 hours, his vital signs cleared. The June 1979 x-ray of the left shoulder was normal, and no shoulder diagnosis was stated. The veteran was discharged to one week of light duty, given a prescription for Tylox and Bacitracin ointment, and told to return to the surgery if any new symptoms occurred. In December 1979, the veteran was admitted for observation of his left shoulder, but no shoulder diagnosis was stated. At the March 1981 separation examination, the veteran's upper extremities were normal. Service connection for a shoulder disability cannot be granted because the evidence includes no medical opinion that a current shoulder disability resulted from an event in the line of duty. The August 2004 VA joints examiner opined that it was unlikely that a current shoulder disability resulted from an in-service motorcycle accident or parachute jump. The August 2004 VA joints examiner was unable to link the veteran's current shoulder disability to having a branch fall on the veteran in 1981 or any other in-service event. Instead, the August 2004 VA joints examiner opined that the veteran's current shoulder disability resulted from a 1999 motorcycle accident. The evidence further showed that the veteran's documented shoulder complaints started over ten years after service. In August 1992, the veteran saw a private chiropractor for a diagnosis of left acromion clavicular sprain with myositis/tendonitis. In April 1993, the veteran reported that his shoulder area was feeling well. In January 1996, the veteran was moved to different work duties, where he injured his right shoulder. He used a hand sander and stood in one place for an extended period of time, bending over frequently to use the sander. By the end of the evening, he was having a great deal of pain between his shoulder blades, which extended over to the right shoulder. After another day of work, it was difficult for him to use his right arm or shoulder without significant pain. The diagnosis was a likely strain of the ligamentum flavum of the thoracic spine. In March 1996, the veteran was seen by a private physician for follow-up of shoulder strain. The veteran felt that he was completely back to normal at this time, and the diagnosis was shoulder strain resolved. In February 1997, the veteran was seen by a private examiner for complaints of pain around the right shoulder blade for the past week. The veteran worked as a janitor, which required him to perform overhead and mopping activities that aggravated the pain. The diagnosis was myositis of the right shoulder. In October 1997, the veteran had myositis between his spine and scapula on the left side. In August 2004, the veteran complained of pain between his shoulder blades, which he then claimed had been going on since a motorcycle accident in 1980 and since a branch fell on him in 1981. The August 2004 VA x-rays of the bilateral shoulders was normal with no bone, joint, or soft tissue abnormality. Other x-rays taken of the bilateral shoulders in August 2004 showed a healed clavicle fracture on the right and mild acromioclavicular arthritis bilaterally. The veteran underwent a VA joints examination in August 2004. The veteran claimed that when he was in a parachute accident in 1981 that he felt some pain between his shoulder blades. The veteran reported being in a more recent 1999 motorcycle accident in which he fractured his right clavicle. In any event, the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse and was not in the line of duty. The June 1979 motorcycle accident was presumed to have resulted from the veteran's own willful misconduct and alcohol abuse because he was driving with a documented blood alcohol level of 0.165 mg% at the time of the accident. See 38 C.F.R. § 3.1(n); M21-1, Part IV, Chapter 11, § 11.04(a), (e); 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(d). Certainly, the veteran has admitted that he was drinking alcohol the day of his motorcycle accident. In June 1999, many years after the fact, the veteran filed an accident report in which he admitted that he had been drinking alcohol earlier on the day of the June 1979 accident. Because the veteran's blood alcohol level was 0.165 mg%, he was presumed to have been intoxicated at the time of the June 1979 motorcycle accident. M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. The veteran's actions in drinking alcohol before he got on his motorcycle showed his willingness to achieve a drunken state the day of the June 1979 motorcycle accident. See M21-1, Part IV, Chapter 11, § 11.04(c); Forshey, 284 F.3d at 1339. Certainly, it was unreasonable and dangerous for the veteran to drive a motorcycle while intoxicated. See M21-1, Part IV, Chapter 11, § 11.04(d). Even if a shoulder disability was incurred in the June 1979 motorcycle accident, and it has not been shown that it was, service connection cannot be granted because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse. 38 U.S.C.A. § 501; 38 C.F.R. § 3.301(c)(2). The Board is not persuaded by the veteran's argument that the June 1979 motorcycle accident was due to rainy conditions and wet pavement. Because the June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse, it could not have occurred in the line of duty. An injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the veteran's own willful misconduct or alcohol abuse. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). This means that any shoulder disability that occurred as a result of the June 1979 motorcycle accident did not occur in the line of duty. The evidence is against the claim, and entitlement to service connection for a shoulder disability cannot be granted. 38 U.S.C.A. §§ 105, 1131, 1153, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.306, 3.307, 3.309; Gilbert, 1 Vet. App. at 54-55. ORDER The June 1979 motorcycle accident resulted from the veteran's own willful misconduct and alcohol abuse. Entitlement to service connection for headaches is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a foot disability is denied. Entitlement to service connection for a leg disability is denied. Entitlement to service connection for a shoulder disability is denied. ______________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs