Citation Nr: 0631762 Decision Date: 10/12/06 Archive Date: 10/16/06 DOCKET NO. 96-13 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether injuries sustained in a motor vehicle accident in September 1994 were due to the veteran's own willful misconduct. REPRESENTATION Veteran represented by: Clark Evans, Attorney WITNESSES AT HEARING ON APPEAL Veteran, his son and his daughter ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from July 1967 to June 1969. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a September 1995 Administrative Decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas denied the veteran entitlement to nonservice-connected pension benefits on the basis that the injuries sustained during a September [redacted], 1994 motor vehicle were due to the veteran's own willful misconduct. The veteran, his daughter and his son testified in support of this claim at a hearing held at the RO in May 1996, before a Hearing Officer. In September 1997, September 1998 and June 1999, the Board remanded this claim to the RO for additional action. In September 2000, the Board affirmed the RO's September 1995 Administrative Decision. The veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2001, based on an Appellee's Motion For Remand and To Stay Proceedings, the Court issued an Order vacating the Board's September 2000 decision and remanding the matter to the Board. In September 2001, the Board again affirmed the RO's September 1995 Administrative Decision, after which the veteran appealed the Board's decision to the Court. In an August 2004 Memorandum Decision, the Court vacated the Board's decision and remanded the matter to the Board for readjudication. In August 2005, the Board in turn remanded the veteran's claim to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. VA provided the veteran adequate notice and assistance with regard to his claim. 2. On September [redacted], 1994, the veteran was involved in a motor vehicle accident. 3. Intoxication proximately resulted in the injuries the veteran sustained secondary to the accident. CONCLUSION OF LAW The injuries the veteran sustained in a motor vehicle accident in September 1994 were due to his own willful misconduct. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.1, 3.159, 3.301 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide that VA will notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, VA provided the veteran adequate notice and assistance with regard to his appeal such that the Board's decision to proceed in adjudicating this claim does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). A. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court clarified that VA's regulations implementing amended section 5103(a) apply to cases pending before VA on November 9, 2000, even if the RO decision was issued before that date, and that, where notice was not mandated at the time of the initial RO decision, it was not error to provide remedial notice after such initial decision. Id. at 120, 122-24. The RO provided the veteran VCAA notice on his claim by letters dated February 2006 and March 2006, after initially deciding this claim in an Administrative Decision dated September 1995. However, VCAA notice was not mandated at the time of the RO's decision; therefore, the RO did not err by providing the veteran remedial notice. Rather, the timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of such notice also reflects compliance with the requirements of the law as found by the Court in Pelegrini II. In the February 2006 and March 2006 notice letters, the RO acknowledged the veteran's claim, noted what the evidence needed to show to substantiate that claim, listed the type of evidence that would best do so, informed the veteran of VA's duty to assist and explained to him that it was developing his claim pursuant to that duty. The RO also explained to the veteran how it determined the effective date to assign an award of VA benefits. The RO identified the evidence it had received in support of the veteran's claim and the evidence VA was responsible for securing. The RO indicated that it would make reasonable efforts to help the veteran get the evidence necessary to support his claim provided he identified the sources thereof, but that ultimately, it was his responsibility to ensure the RO's receipt of all such evidence. The RO advised the veteran to complete the enclosed forms authorizing the release of his treatment records if he wished VA to obtain them on his behalf. The RO further advised the veteran to identify or send directly to the RO any pertinent evidence, including that which was requested. During the course of this appeal, the veteran and his representative argued that the RO violated the veteran's due process rights by relying on medical treatises, textbooks and other information in the first instance and by not giving deference to state statutes and case law, copies of which the veteran submitted in support of his claim. The Board acknowledges this argument, but points out that, in supplemental statements of the case issued during the course of this appeal, the RO notified the veteran of all evidence it had considered in support of the veteran's claim, explained why it relied upon, or discounted, such evidence in denying the claim, and provided the veteran ample opportunity to respond thereto either by presenting additional argument or submitting additional evidence to refute the RO's findings and conclusions. The RO actions in this regard protected, rather than violated, the veteran's due process rights. B. Duty to Assist The RO made reasonable efforts to identify and obtain relevant records in support of the veteran's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the veteran identified as being pertinent to that claim, including VA and private inpatient and outpatient treatment records, information from Arkansas Department of Human Services, the Social Security Administration and the veteran's insurance company, and accident reports from the Arkansas State Police and Emergency Medical Technician Paramedics (EMS). The RO also conducted medical inquiry in an effort to substantiate the veteran's claim by obtaining two medical opinions, one from a VA emergency room staff physician pursuant to VHA Directive 10-95-040, and the other from an independent physician from the University of Mississippi Medical Center specializing in emergency medicine and medical toxicology. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). II. Analysis of Claim The veteran claims entitlement to nonservice-connected pension benefits. He disputes VA's finding that such benefits may not be paid because the injuries he sustained in a September 1994 motor vehicle accident, and upon which his claim is based, were due to his own willful misconduct. VA may pay pension benefits to veterans of a period or periods of war because of nonservice-connected disability or age. 38 U.S.C.A. § 1521 (West 2002). One qualifying period of war for this benefit is the Vietnam era. 38 U.S.C.A. § 1502(a) (West 2002); 38 C.F.R. § 3.3(a)(3) (2005). To be entitled to such benefits, a veteran must be permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct and must meet certain net worth and income requirements. See 38 C.F.R. §§ 3.3(a)(3)(vi)(B), 3.23, 3.274 (2005). Such benefits are not payable for disability due to willful misconduct. 38 C.F.R. § 3.301(b) (2005). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (1)-(3). The simple drinking of an alcoholic beverage is not of itself willful misconduct. But 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 willful misconduct. 38 C.F.R. § 3.301(c)(2) (2005). In this case, as explained below, the evidence establishes that intoxication proximately resulted in the injuries the veteran sustained in the September 1994 accident. As such, pursuant to the aforementioned law and regulations, these injuries must be considered the result of the veteran's willful misconduct. According to the Motor Vehicle Accident Report completed by a trooper and filed by the Arkansas State Police Department in September 1994, minutes prior to 6:25 p.m. on September [redacted], 1994, the veteran was driving his pick-up truck southbound when, on a curve, he traveled off the road and onto the shoulder. The veteran then tried to over-correct, thereby losing control of his vehicle, and crossed the center line into the northbound lane. The veteran's pick-up truck then slid back across the center line and into the southbound lane and landed in a ditch, where the truck's driver side doorpost hit an oak tree. The truck then spun around, apparently flipped, righted itself, descended headfirst into a deep ditch, struck a concrete apron wall of an underground culvert and came to rest. In the Operator and Occupancy Vehicle 1 Section of the report, the trooper checked that the veteran was "Not Tested" for BAC (blood alcohol concentration) test. He did not check the option "Refused Test." In the Investigator Description of the report, however, the trooper noted that the veteran refused to allow his blood to be drawn for a blood alcohol test, and that the only statement given by the veteran was "drank to (sic) much - was driveing (sic) to (sic) fast." The trooper also noted Wednesday as the day of the accident and indicated that the accident occurred during daylight on a rural two-lane undivided highway. In addition, he noted that there were no adverse road or weather conditions detected and no witnesses to the accident. He listed the following contributing factors to the accident: driving "too fast for conditions;" on the "wrong side [of the] road;" and with "alcohol." The trooper listed the status of arrest as "pending" with no charge specified. EMS responded to the trooper's call for medical help. According to the hospital copy of the EMS report, upon arrival, the attending paramedics found the veteran's truck located in an embankment and a concrete culvert. They also found the veteran unrestrained, lying against the passenger door of his truck on the floorboard. At the scene of the accident, the veteran stated that he could not move his arms and complained of neck pain. He also stated that he had been drinking alcohol and thought that he had lost consciousness at some point. On physical examination, the veteran was alert and oriented. The Glasgow Coma Scale (GCS) indicated that the veteran had spontaneous eye opening (4), oriented verbal response (5), and a motor response of obeying command (6). EMS transported the veteran to Johnson County Regional Hospital. According to reports from Johnson County Regional Hospital, the veteran presented to the hospital with an inability to move his upper extremities. Hospital personnel noticed an "alcohol odor." After undertaking an initial evaluation, rendering treatment and obtaining laboratory and radiological results, a physician diagnosed cervical spine injury, probably C7 fracture and hypotension, probably neurological shock and left upper extremity soft tissue injury. Medical personnel stabilized the veteran and transferred him to the University of Arkansas Medical Center via helicopter at approximately 11:00 p.m. On admission to the University of Arkansas Medical Center, the veteran was alert and oriented times three and positive for alcohol and various intoxicants. A toxicology report reflected negative substance abuse screens, but an alcohol screen of 82 milligrams of alcohol (ethanol) per deciliter of blood. The veteran remained hospitalized for treatment and, once stabilized, physicians transferred him to a VA hospital. According to the medical history portion of the discharge summary, the veteran was involved in a roll-over motor vehicle accident as a result of being intoxicated. Records of the VA hospitalization and a report of a VA examination for housebound status and/or regular aid and attendance conducted in December 1994 reflect that, since the transfer to the hospital and then later to a nursing home, physicians have diagnosed the veteran with C5-6 complete myelopathy, incomplete quadriplegia and complete bowel and bladder paralysis and have related these medical conditions to the September 1994 accident. Multiple individuals, including the veteran, his son and daughter, an insurance representative and several physicians have discussed what caused these injuries and whether such injuries resulted from the veteran's willful misconduct. After filing his claim, including in a Report of Accidental Injury dated November 1995, during a hearing held in May 1996, and in various written statements, the veteran admitted that, during the course of the day of the accident (over a several-hour time period), but prior thereto, he drank approximately three to four beers. He posited, however, that he did not become intoxicated from such drinking. Allegedly, he fell asleep while driving approximately 60 miles per hour, lost control of his vehicle and, when he awakened, was unable to regain control. He contended that he did not remember how the accident occurred because he sustained a concussion as a result thereof. He contested the content of hospital records reflecting that he admitted drinking alcohol. Allegedly, he does not remember reporting that he had drunk too much or had driven too fast, or refusing to allow his blood to be drawn for a blood alcohol test. He emphasized that law enforcement officials did not charge him for any wrongdoing as a result of the accident. According to the testimony of the veteran's son and daughter, when the veteran arrived at the hospital after the accident, he did not recognize his daughter and was unable to speak. Allegedly, a police officer was sitting at the veteran's bedside attempting to obtain the veteran's consent to have his blood drawn for a blood alcohol test. According to a Notice of Loss Inquiry and Claim Activity Summary from Nationwide Insurance, the veteran's insurance company did not pay the veteran the full amount of his claim for reimbursement for the loss of his vehicle due to the accident. Rather, based on admissions the veteran allegedly made to officers regarding drinking too much and driving too fast, the insurance company determined that, at the time of the September 1994 accident, the veteran was intoxicated and speeding. Accordingly, it settled such claim by paying the veteran a small portion of his claim. In September 1998, C.N.B., M.D., a Neuroradiologist, Board Certified Radiologist, and Assistant Professor of Radiology and Nuclear Medicine at the Uniformed Services University of the Health Services submitted a written opinion favorable to the veteran's claim. He based such opinion on a review of the veteran's claims file, focused on the veteran's acknowledgment that he had been drinking and his assertions that he had fallen asleep and had not been charged with any traffic violations, and the GCS, EMS report and hospital reports, which show that, after the accident, the veteran was alert and oriented, had spontaneous eye movements and obeyed commands post-accident and had "hypotension prob neurogenic shock," and concluded that one would not have found the veteran to be in such a state if he had been intoxicated at the time of the accident. He intimated that the veteran might have appeared impaired secondary to the shock. In support of this conclusion, he cited volume one of the Cecil Textbook of Medicine, 483, 491 (20th ed.), which discusses the stages of shock (Stage II-Decompensated Shock) and pain control, for the propositions that the veteran was demonstrating impaired major organ perfusion, as manifested by an altered mental state (impaired cerebral perfusion), and that, because he was in shock, he probably was also in pain and may have been frightened or agitated. Based on the same evidence noted above, C.N.B. also concluded that the BAC test at issue in this case is invalid due to its untimeliness (drawn over five hours after the accident) and because it could have been contaminated by the two blood transfusions. In support of this conclusion, C.N.B. cited to volume three of the Lawyer's Medical Cyclopedia 24.13, Part B (Richard M. Patterson, J.D. ed., 3rd ed.). Therein, is a discussion of whether it is possible to estimate blood alcohol concentration at the time of an accident if the blood specimen is drawn two hours after the accident. The author concludes, "not with great reliability." He explains that the results of any such test should be used with caution and only as an approximate estimate. He further explains that too many factors are involved, including when did the subject last eat and what did he eat; what was the time of the last drink; whether any, and how much, alcohol was in the subject's stomach at the time of the accident; whether he was still absorbing alcohol from the gastrointestinal tract at the time the specimen was collected; when was the maximum BAC peak reached (before, during, or at the end of the absorptive stage); what was the condition of the subject's liver; and what were his drinking habits. C.N.B. also cited to volume one of Cecil Textbook of Medicine 47-48 (20th ed.) for a description of acute alcohol intoxication and a table of "blood ethanol levels and symptoms." On page 47, the author notes the following: Symptoms vary directly with the rate of drinking and are more severe when blood alcohol concentrations are rising rather than falling. Most individuals feel euphoric, lose social inhibitions, and manifest expansive, sometimes garrulous behavior; others may become gloomy, belligerent, or even explosively combative. Some people do not experience euphoria but become sleepy after moderate drinking; they rarely abuse alcohol. Neurologic signs of intoxication include impaired cognition, slurred speech, incoordination, mild truncal ataxia, and slow or irregular eye movements. Signs of increased sympathetic activity include mydriasis, tachycardia, and skin flushing. Cerebellar and vestibular function deteriorates at higher blood alcohol concentration, and drunkenness is characterized by dysarthria, more severe ataxia, nystagmus, and diplopia. Id. C.N.B. pointed out the fact that no attempt had been made to determine the long-term history of the veteran's alcohol consumption for the purpose of understanding whether the veteran was a novice alcohol user, a moderate or heavy alcohol or to ascertain when and what the veteran last ate before the accident. In another written statement dated December 1998, C.N.B. clarified that a Neuroradiolgist is a physician who specializes in Neuroradiology, the branch of medicine which includes neurology and radiology. He emphasized that the conclusions he drew in September 1998 were based on the medical evidence of record and that all textbook materials cited in support of such conclusions were recognized authorities. He reiterated that there is insufficient evidence of record to find that alcohol and speed, which may have been factors in the accident at issue, were the proximate cause of the accident and resulting injuries. He concluded that it is as likely as not that falling asleep, as the veteran claimed he did prior to the accident, proximately caused the accident. In February 1999, the Board sought a medical expert opinion pursuant to VHA Directive 10-95-040 on the following questions: (1) Is it at least as likely as not that the veteran's September [redacted] toxicology report, which was taken approximately five hours after the accident and reflected a screen of 82 milligrams of alcohol (ethanol) per deciliter of blood, shows that the veteran was intoxicated at the time of the accident?; (2) In your opinion, what is the probability, based on the data of record and other cited authority, if necessary, that the alcohol screen is or is not reliable?; and (3) In your opinion, are the medical reports from EMS and the Johnson County Regional Hospital consistent or inconsistent with the findings one would medically expect if the veteran was intoxicated at the time of the accident? In March 1999, a staff physician from an Emergency Room of a VA Medical Center responded that, yes, it is most likely that the veteran was intoxicated at the time of the accident. He based this response on evidence showing that the accident happened during the daytime when the weather was good and that no other vehicle was involved. He also based this response on the fact that, after the accident, the veteran was sent directly to the Emergency Room of Johnson County Regional Hospital where he was noted to have an "alcohol odor" and admitted that he had been drinking. According to the staff physician, five hours later, the veteran's blood alcohol level showed 82 mg per deciliter and there is no evidence of record indicating that the veteran had any alcohol intake between the accident and the time the level was tested. The staff physician added that, according to his experience and that of the authorities, i.e., 20th Edition of Cecil's Text Book of Medicine as well as the Director of the Poison Control Center of Winthrop University Hospital in Mineola, New York, alcohol intoxication occurs at blood alcohol levels as low as 50 mg per deciliter in non alcoholics. In addition, the blood alcohol level drops 10-25 mg per deciliter per hour once alcohol intake is discontinued. The veteran's initial blood alcohol level, therefore, could only be higher than 82 mg per deciliter, around 130-200 mg per deciliter. The staff physician also responded that the alcohol screen is a reliable test and that blood transfusions cannot raise blood alcohol levels. He based this response on information from the Director of the Poison Control Center at Winthrop University Hospital and his own experiences in the Emergency Room. The staff physician further responded that the medical reports from EMS and Johnson County Regional Hospital are consistent with the findings that one would medically expect if an individual was intoxicated at the time of an accident. He based this response on attached articles titled, "Alcoholism and Alcohol Abuse" and "Alcohol Related Medical Disorders." In May 1999, C.N.B. submitted another written opinion in support of the veteran's claim, in which he responded to and/or refuted the VA staff physician's March 1999 opinion. First, he cited to various regulations explaining VA's responsibilities with regard to assisting veterans and asserted that the questions the Board asked the VA staff physician were insufficient to fulfill these responsibilities. C.N.B. then explained why he cited to certain medical authorities in his prior opinions and reiterated certain sections of these authorities to support his conclusion that the record contains insufficient information to find that alcohol and speed were the proximate cause of the veteran's accident. He again emphasized that no effort had been made to determine whether, at the time of the accident, the veteran's blood alcohol was rising, reaching its peak or decreasing, which depends upon when and what the veteran consumed prior to the accident. He indicated that the transcript of the veteran's hearing, which is not sufficiently comprehensive, represents the only evidence in the claims file referring to when and what the veteran ate and when he consumed alcohol prior to the accident. C.N.B. noted that such information is essential to estimating accurately a blood alcohol level at the time of the accident. C.N.B. then discussed the questions the Board asked the VA staff physician and maintained that they were slanted with an objective to suggest to the physician that a negative response was being sought. He also pointed out that the Board's request for a VHA opinion did not show a chain of custody for the drawn blood and did not include a laboratory report. C.N.B. addressed the VA staff physician's opinion and indicated that it was not based on the veteran's testimony, did not mention when and what the veteran ate and drank during the day of the accident and whether he was a sporadic or a chronic drinker, and was not supported by rationale. He took issue with the VA staff's physician's conclusion that the veteran's initial blood alcohol level could only be higher than 82 mg per deciliter, around 130- 200 mg per deciliter, at the time of the accident. C.N.B. argued that there was insufficient evidence of record to support such a conclusion based on rationale that the veteran had no alcohol intake between the accident and the time his blood alcohol level was drawn. C.N.B. indicated that one could not so conclude without knowing whether, at the time of the accident, the veteran's blood alcohol was on the rise, had reached its peak or was declining. Finally, C.N.B. noted that, although the alcohol screen is a reliable test, it is only reliable when blood alcohol concentration is tested in a timely manner, rather than five hours after an accident. Allegedly, for reliability at such a later time, one must know the chain of custody of the drawn blood, the qualifications of the test taker, and whether the machine used to draw the blood was accurate. Based on the foregoing, C.N.B. outlined questions the Board should have posed an independent medical expert in support of the veteran's claim. Based on the conflicting medical opinions of record, the Board referred the veteran's case to an independent medical expert opinion in April 2000. The Board asked the expert to provide an estimate of the veteran's blood alcohol level at the time of the accident, opine whether it is at least as likely as not that 5 hours after metabolizing the ingested alcoholic beverages, the veteran's blood alcohol level of 82 mg per deciliter was increasing or decreasing, and opine whether it is at least as likely as not that the evidence is consistent with a finding that the veteran was not intoxicated at the time of the accident. The Board asked the expert to consider all other evidence of record, including the aforementioned conflicting medical opinions, and, to the extent possible, reconcile the conclusions reached. In June 2000, T.T., M.D., an Assistant Professor of Emergency Medicine at the University of Mississippi School of Medicine, staff physician at the University of Mississippi Medical Center's Emergency Department, and a consulting medical toxicologist for the Mississippi Poison Control Center, responded. With regard to the first matter, he indicated that a reasonable estimate of the veteran's blood alcohol concentration at the time of the crash is 132- 232 mg/dl. He explained that, in deriving such a measurement, he considered that the veteran's blood alcohol concentration was measured at 82 mg/dl approximately 5 hours after the crash and that ethanol elimination rates for pertinent blood alcohol concentration ranges vary from 10-30 mg/dl/hr. He explained that one must assume a peak or post- peak blood alcohol concentration at the time of the crash and no delayed continued absorption from the gastrointestinal (GI) tract. He noted that according to the veteran, ethanol ingestion was completed at least approximately 5 hours prior to the crash. Given this testimony, ethanol absorption from the GI tract would have been complete and the veteran's blood alcohol concentration would have been post peak at the time of the crash. He acknowledged that the issue of food consumption on GI absorption of ethanol had been raised and explained that, while solid food has been demonstrated to decrease total ethanol absorption and to decrease the peak blood alcohol concentration, it has not been shown to delay greatly the time to peak blood alcohol concentration or continued ethanol absorption after about two hours after ingestion. With regard to the second matter, he opined that it is much more likely than not that the patient's blood alcohol concentration was decreasing at the time of testing. He based this opinion on the following findings: that it is highly unlikely that medical personnel administered a medication containing a significant amount of ethanol after the accident, but before the test; that, as noted above, it is also highly unlikely that there was delayed continued ethanol absorption from the GI tract, that the veteran reportedly consumed no ethanol during the critical time period; and that an administration of intravenous fluids and blood products would have resulted in decreased, rather than increased, blood alcohol concentration as blood products do not contain ethanol or substances measured as ethanol. With regard to the third matter, he opined that it is much more likely than not that the veteran was intoxicated and impaired to driving skills at the time of the collision. He explained that definitions are of great importance in understanding terms such as intoxication and impairment. Allegedly, intoxication is a nervous system abnormality caused by a drug or toxin (including ethanol) while impairment is task specific, a decreased functional ability to perform a task (such as driving) due to a drug or toxin (including ethanol). The medical expert indicated that driving skill impairment occurs when there is blood at a concentration level as low as 10-70 mg/dl. The medical expert acknowledged argument that the veteran did not appear intoxicated and notations of EMS personnel indicating that the patient had a GCS score of 15. He noted, however, that GCS is a tool to measure the degree of gross central nervous system impairment after trauma, not a tool to measure the extent of intoxication. He explained that an individual with quite significant intoxication could easily have a GCS measured as 15. The medical expert also acknowledged that the veteran was alert and oriented at both the crash scene and at the University of Arkansas. He noted, however, that an individual may be alert and oriented while significantly intoxicated and that such a gross description of mental status is not sufficiently sensitive to rule out intoxication. Regarding an apparent lack of documented manifest signs of ethanol intoxication, he further noted that apparently sober individuals may have quite elevated blood alcohol concentration measurements. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to the aforementioned medical opinions. An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. For instance, the Court has held that a post-service reference to injuries sustained in service, without a review of service medical records, does not constitute competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). The Court has also held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record, see Miller v. West, 11 Vet. App. 345, 348 (1998), and that an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As well, the Court has held that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not constitute competent medical evidence merely because the transcriber is a health care professional, see LeShore v. Brown, 8 Vet. App. 406, 409 (1995), and that a medical professional is not competent to opine as to matters outside the scope of his expertise. Id (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994). Finally, the Court has held that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty, see Bloom v. West, 12 Vet. App. 185, 187 (1999), that a medical opinion is inadequate when unsupported by clinical evidence, see Black v. Brown, 5 Vet. App. 177, 180 (1995), and that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In light of these standards, the Board assigns evidentiary weight to each medical opinion of record, but the greatest evidentiary weight to the opinion of the independent medical expert from the University of Mississippi Medical Center. The opinions of C.N.B. and the VA staff physician and independent medical expert are comprehensive and supported by clinical findings, rationale and recognized authoritative medical treatises and textbooks. Although the VA staff physician's opinion does not appear to contemplate all evidence of record, including the veteran's hearing testimony, it is offered by an emergency room physician based upon consultation with the Director of the Poison Control Center of Winthrop University Hospital, an expert in the field of medicine at issue in this case. C.N.B.'s opinion, on the other hand, appears to contemplate all evidence of record, but is not offered by a medical professional who has specialized expertise in toxicology or emergency room medicine. The independent medical expert's opinion, unlike the opinions of C.N.B. and the VA staff physician, is offered by a medical professional who has specialized expertise in both emergency room medicine and toxicology and contemplates all evidence of record, including the veteran's testimony and written statements and C.N.B.'s opinions. As such, the Board considers it more probative to the question of whether the veteran was intoxicated at the time of his accident. The veteran has expressed multiple contentions in support of his appeal, some of which the Board discussed above. Since he filed his appeal, his representative has also asserted that the undersigned should disqualify herself from deciding it. The representative bases his argument on the fact that the undersigned ordered the RO to undertake additional development in this case. A Member of the Board is to disqualify himself or herself in a hearing or decision on an appeal if that appeal involves a determination in which he or she participated or had supervisory responsibility at the RO prior to his or her appointment as a member of the Board, or when circumstances give the impression of bias either for or against the appellant. 38 C.F.R. § 19.12(a) (2005). In this case, the undersigned did not participate in, or have supervisory responsibility for, the RO's decision denying the veteran's claim and there is no evidence that she is now biased against the veteran in deciding his claim. Rather, in ordering further development of the veteran's claim, the undersigned was protecting the veteran's due process rights and ensuring that all evidence necessary to decide his claim fairly was before the Board. The veteran's representative does not assert, and the evidence does not establish that, by any other action, the undersigned gave the appearance of partiality, harbored bias or prejudice, has a personal or financial stake in the outcome of this appeal, or is incapable of rendering a decision. The veteran also asserts that, because he was not criminally prosecuted for drinking while driving, the Board may not find that he was intoxicated at the time of the September [redacted], 1994 accident. In support of this particular assertion, he has submitted copies of Arkansas statutes and pertinent case law for the proposition that, because his blood was tested more than two hours after his accident, the results of such testing may not be considered presumptive evidence of intoxication. The Board acknowledges this assertion; however, according to VA's ADJUDICATION PROCEDURE MANUAL M21-1 (M21-1), Part IV, Paragraph 11.04(c)(2), and Yeoman v. West, 140 F.3d at 1443, 1446-47, although a presumption of intoxication is raised when a laboratory test shows a blood alcohol level of .10 % or more, to establish that a claimant engaged in an action causing such intoxication, the Board need not prove that he violated the laws of his state. Rather, violation of such laws is only one factor relevant to a consideration of what constitutes willful misconduct; it is not dispositive of the matter. Based on the evidence of record, particularly, the June 2000 opinion of the independent medical expert, the Board finds that intoxication proximately resulted in the injuries the veteran sustained secondary to his September [redacted], 1994 motor vehicle accident. The Board thus concludes that such injuries were due the veteran's own willful misconduct. The evidence is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution of his claim. Rather, as the preponderance of the evidence is against the claim, it must be denied. ORDER The injuries sustained in a motor vehicle accident in September 1994 having been due to the veteran's own willful misconduct, the appeal is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs