Citation Nr: 0717999 Decision Date: 06/15/07 Archive Date: 06/26/07 DOCKET NO. 06-29 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Whether new and material evidence has been received to reopen the May 1991 administrative line of duty determination which found misconduct. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from August 1988 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 administrative decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Lincoln, Nebraska which upheld the RO's May 1991 determination that the veteran's May 1990 injuries incurred in an automobile accident were due to his own willful misconduct and determined that new and material evidence had not been presented with which to reopen and reconsider that matter. The record contains a Statement of the Case (SOC) issued as to a claim of whether clear and unmistakable error (CUE) exists in the decisions that the veteran's automobile accident of May 16, 1990, was due to his own willful misconduct. A report of contact dated in August 2006, reflects that the veteran's representative contacted VA to indicate that he was not pursuing a CUE claim. This matter will be further discussed herein; but significantly, the Board has concluded that this matter is not pending before the Board on appeal. In March 2007, the veteran's representative filed a motion to advance this case on the docket, claiming serious illness. In April 2007, the Board granted the motion, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2006). FINDINGS OF FACT 1. The veteran did not file a notice of disagreement within one year of his notification of the May 1991 determination that the injuries sustained in an accident which occurred in May 1990 were due to his own willful misconduct. 2. The additional evidence presented since the May 1991 rating decision was not previously submitted to agency decisionmakers and largely is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, but it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the final May 1991 administrative line of duty decision is not new and material and fails to reopen the willful misconduct determination. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must be provided prior to the adjudication appealed, and must inform 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The veteran has been informed repeatedly of what constitutes new and material evidence and of the evidence he was expected to provide and the evidence VA would obtain. In this regard, a letter dated in October 2002 both provided the veteran with the appropriate definition of new and material evidence under 38 C.F.R. § 3.156 and of the regulations pertaining to line of duty determinations and willful misconduct. In January and October 2003 letters, the veteran was informed to provide to VA any evidence he had pertaining to his claims, to include his compensation claims. In addition, the August 2006 supplemental statement of the case contained the complete text of 38 C.F.R. § 3.159(b)(1), which includes the instructions concerning appropriate notice. Moreover, the record shows the veteran has played an active role in the adjudication of his claim and neither he nor his representative has offered or identified any additional evidence in support of the claim which is not already associated with the file. As such, a remand for additional notification would serve no useful purpose and would only impose unnecessary burdens on VA and the veteran. See Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Moreover, inasmuch as a request to advance this case on the docket due to the veteran's medical condition has been granted time is of the essence in adjudicating this case. Therefore, the Board considers the notice requirements met for the claim to reopen. With respect to the timing of the notice, the Board finds that any defect with respect to the timing was harmless error. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. It is clear from the veteran's and his representative's active role in the adjudication of the claim and by the arguments that the parties understand the evidence needed to substantiate the claim and his and VA's roles in the claims process. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2005). VA's duty to assist does not include providing a VA examination in claims to reopen. See 38 C.F.R. § 3.159(c)(4) (2006). VA and private medical records have associated with the claims file as well as non-medical evidence and statements. As the veteran has not identified or properly authorized the request of any other evidence, the Board concludes that no further assistance to the veteran regarding development of evidence is required. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Factual Background Service medical records show that the veteran, a 20-year old active duty Air Force male was involved in a single car motor vehicle accident (MVA) on May 16, 1990. A report from Riverside Community Hospital (Riverside) indicates that he was immediately rendered paralyzed and was brought by ambulance to Riverside where he had no motion of the lower extremities. Initially, impressions of an injury to the cervical spinal cord and rule out thoracic fracture were made. Riverside records reflect that the veteran was admitted through the emergency room at 12:40 AM. Blood alcohol testing (BAT) done at 12:55 AM revealed a level of .11% and it was noted that the veteran was not cooperative. A later BAT done at 1:40AM revealed a level of .8%. The admission report from Riverside indicates that the veteran was involved in a rollover traffic collision and was trapped in the vehicle for 30 minutes before being extracted from it. The report indicated that he denied any loss of consciousness. The record also contains police reports involving the accident. A traffic collision report of record indicated that the accident occurred at 11:45 PM on May 16, 1990. The report indicated that the veteran was 130 pounds. A report was filed by a California state trooper who was at the scene of the accident. The report indicated that the police were unable to give the veteran a field sobriety test due to his injuries; however the officer believed that there were other indications that the veteran was under the influence of alcohol and placed him under arrest for DWI. It was noted that the veteran consented to a blood test which was administered at Riverside. The report stated that the cause of the accident was DWI. It appears that the initial response at the scene occurred at 12:05 AM on May 17, 1990. A report revealed that several tire skid marks were evident at the scene. Service medical records reflect that the veteran was hospitalized at a military facility for about 3 weeks, from which he was discharged on June 7, 1990. The discharge diagnoses included paraplegia with T6 fracture, status post Harrington rod stabilization and fusion from T4-9; and C4-5-6 lamina fractures, undisplaced on the left. The veteran provided the following information in August 1990. He indicated that prior to the accident he was on his way to a club. He mentioned that there were witnesses to the accident and named them. He stated that he had no recollection if he had been drinking before the accident and reported that he could not recall anything that happened from 4 hours prior to the accident until 2 days after the accident. He indicated that he was wearing his seatbelt prior to the accident. He indicated that he could not recall the rate of speed at the time of the accident and did not know what caused it. A military investigation was conducted which included consideration of and references to medical reports, police reports, witness statements and statements of the veteran. The following facts were established: (1) the veteran was involved in a MVA accident at 11:45 PM on May 16, 1990, en route to a nightclub; (2) the veteran was following a car full of friends and attempted to negotiate an exit off-ramp; (3) the veteran lost control of the car and it hit a curb and also an overhead light pole - the car rolled over but came to rest in an upright position; (4) the vehicle was totaled and crushed to the point that the veteran had to be extracted from the car by a Jaws-of-Life apparatus provided by the fire department; (5) as a result of the accident he sustained fractures and injuries to the spine which rendered him paralyzed from the waist down. Additional facts reveal that the veteran did not appear to have any alcohol related problems nor had he sought any alcohol treatment during service. The findings also revealed that the highway patrol officer on the scene detected alcohol on the veteran's breath and got a positive horizontal nystagmus indication (alcohol intoxication test). The veteran was placed under arrest for DWI before being released to the hospital. It was noted that medical lab reports showed that blood alcohol contents of .11% (May 17, 1990 - 12:55AM) and .08% (May 17, 1990 - 1:40AM) were reported. It was reported that the speed limit on the exit ramp where the accident occurred was 30 MPH, but a witness at the scene of the accident stated that the veteran passed him on the freeway seconds before the accident at a speed estimated at 80 MPH. It was noted that the highway patrol report indicated that the veteran was not using his safety belt. From the facts gathered as aforementioned, the investigating officer concluded that a preponderance of the evidence supported a finding that the veteran's injuries were caused by his willful neglect. The officer noted that the veteran could not recall drinking alcohol prior to the accident and none of the witnesses who knew him admitted to drinking prior to the accident (it was noted that the veteran and witnesses were underage). It was also noted that two blood alcohol tests confirmed the veteran's illegal intoxication per California state law. Two witnesses attested that the veteran was driving over the posted speed limit, one of which estimated his speed at over 80 MPH. At least one witness indicated that the veteran, who was following a car full of friends on the way to a nightclub, may have been surprised by taking a route that was different from that usually taken to the club. It was noted that although the veteran reported that he was wearing his seat belt when the accident occurred, both an experienced highway patrol officer and firemen at the scene, believed that the seatbelt was not used based on his position in the car. A Formal Line of Duty determination was made in September 1990 by a Staff Judge Advocate. The discussion mentioned that under California law, there is a rebuttable presumption of intoxication when the blood alcohol concentration level is .08 mg. It was noted that although the veteran claimed that he was unable to recall drinking prior to the accident; the preponderance of the evidence indicated that the veteran was physically and legally intoxicated at the time of the accident with a combined factor of excessive speed. Therefore it was determined that the investigating officer's conclusion was fully supported by a preponderance of the available evidence. The veteran's case was referred to a physical evaluation board (PEB) in October 1990 based on diagnoses of T6 paraplegia and neurogenic bladder and bowel. The PEB considered the veteran to be unfit and medically unstable for further service and discharge was recommended. The veteran was ultimately discharged in March 1991. In April 1991, the veteran filed original service connection claims for spinal cord injuries, loss of bowel and bladder control, loss of arms and legs and for a sinus condition. In May 1991, VA issued an administrative decision regarding a line of duty determination. VA noted that speed and alcohol were factors in the accident and determined that the veteran's injuries suffered in the accident were due to his own willful and reckless disregard, thereby barring service- connected disability benefits administered by VA. Accordingly, in a May 1991 rating action, the veteran's claimed service-connected conditions were denied. The veteran was advised of those determinations in June 1991 and did not appeal the determinations made regarding the line of duty findings and service connection claims. Accordingly, those decisions became final. In March 2000, the veteran requested that his service- connection claims be reopened. In an August 2000 rating decision, the RO determined that new and material evidence had not been received with which to reopen the service connection claims for a spinal cord injury with residual loss of bowel and bladder control and paraplegia. The veteran was notified of that decision and did not appeal it. In October 2002, the veteran's representative requested that a new line of duty determination be made in the veteran's case, in essence representing a claim of whether new and material evidence has been received to reopen the May 1991 administrative line of duty determination which found misconduct. In support of the claim the veteran's representative submitted copies of 4 maps obtained from the internet which include the locations involved in the accident and referenced by witnesses in conjunction with the investigation of the accident done in 1990. Also submitted for the record by the veteran's representative were BAC estimators copied from the internet based on a possible scenario involving the events of the night of the accident to include an estimate that the veteran drank between three and 4 beers or malt liquors prior to his accident. Other variables included the veteran's weight which was estimated as 130 pounds, as shown by the evidence at the time of the accident. In October 2002, the RO issued a decision confirming the previous line of duty determination. A Notice of Disagreement (NOD) was filed in October 2002. However, in January 2003, the RO issued another line of duty (LOD) determination, this time in favor of the veteran. Pursuant to the LOD determination made by VA in January 2003, the veteran's representative withdrew the NOD as to that matter. Thereafter, the veteran requested service connection for spinal cord injuries, loss of bowel and bladder control, loss of arms and legs and for a sinus condition. In another administrative decision, which was issued by VA in March 2003, VA determined that the January 2003 LOD decision contained clear and unmistakable error (CUE). In the March 2003 decision, VA determined that the veteran's injuries sustained as a result of the MVA on May 16, 1990, were due to his own willful misconduct and reckless disregard, and that therefore this was a bar to service-connected disability benefits administered by VA. Also submitted for the record was a VA medical statement dated in March 2003. The doctor opined that having reviewed the veteran's records, it was completely clear that his blood alcohol level at the time of the accident could not be determined to any degree of medical certainty because there were so many factors that could influence blood alcohol (levels) including: volume and rate of ingestion, gastric emptying, distribution and metabolism of alcohol in the body, etc. It was explained that complete absorption of alcohol might take several hours. The doctor concluded that it was certainly possible that the veteran's blood alcohol at the time of the accident was lower than the blood alcohol level measured an hour or so following the accident, depending on the factors noted herein. In May 2003, correspondence involving the LOD determination was issued by a VA Service Center Manager to the VA Director of the Compensation and Pension Services. Therein, VA determined that the veteran's injuries sustained as a result of the MVA on May 16, 1990, were due to his own willful misconduct and reckless disregard, and that therefore this was a bar to service-connected disability benefits administered by VA. The decision referenced VA Adjudication Manual M21-1, Part IV, Chapter 11.04(c)(2) which states that there is a presumption of intoxication when a person's blood alcohol content is .10 or more. The decision pointed out that the record contains testing dated shortly after the accident which indicated that the veteran's blood alcohol level was .11. In July 2003, the VA Director of the Compensation and Pension Services issued correspondence to the VA Service Center Manager regarding a difference of opinion and concluding that the denial of entitlement to service connection for the spinal cord injuries should be confirmed and continued. In June 2005, a letter was issued from the VA Director of the Compensation and Pension Services to the veteran's representative, to the effect that the decisions of the RO finding the veteran's injuries not to have been sustained in the line of duty are not shown to be clearly and unmistakable erroneous. In July 2005, the veteran's representative requested that the NOD which was filed in October 2002 be reinstated and the claim of whether new and material evidence has been received to reopen the May 1991 administrative line of duty determination which found misconduct be re-activated. It was explained that the NOD had been withdrawn when the January 2003 LOD determination was rendered in the veteran's favor. However, when that determination was reversed, the representative argued that his appeal should have been reinstated. Initially, in a February 2006 determination by the RO, it was decided that a timely appeal was not filed. However, ultimately the matter was resolved in the veteran's favor and the appeal was reinstated and the October 2002 NOD given effect. Legal Analysis In a March 2007 argument presented by the veteran's representative, the claim at issue on appeal was framed as whether the January 10, 2003, administrative decision of a decision review officer (DRO) to reopen and grant the appeal was a result of clear and unmistakable error. Not only is this issue as characterized in direct conflict with the representative's statements of August 2006 indicating that he was not pursuing a CUE claim and had not filed an appeal on that matter but the characterization is legally improper. The October 2002 NOD having been reinstated as to the October 2002 determination as to whether new and material evidence had been submitted with which to reopen and reconsider the LOD determination, the January 2003 LOD determination is necessarily not a final decision, as the appeal of the LOD matter has been pending from October 2002 to this day. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). In this case, the only final decisions of record are the original LOD determination made in May 1991 and an August 2000 determination to the effect that no new and material evidence was submitted to reopen and reconsider the veteran's service connection claims. The January 2003 LOD determination is not final, as the entire matter involving the LOD determination has been pending since the October 2002 administrative decision which is the subject of this appeal. As such, that determination is not subject to appeal or reversal under the theory of CUE. In evaluating an application to reopen a claim, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As previously indicated, the veteran did not file a notice of disagreement within one year of his notification of the May 1991 administrative decision (the last final disallowance of the claim). See 38 U.S.C.A. § 4005(c) (1990); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1991). Prior unappealed decisions of an RO are final. 38 U.S.C.A. § 7105(c) (West 2002). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002); Manio v. Derwinski, 1 Vet. App 145 (1991). Whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed by the Board before the Board can consider the underlying claim. 38 U.S.C.A. § 5108 (West 2002); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). For claims filed on or after August 29, 2001, such as this one, 38 C.F.R. § 3.156(a) provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 66 Fed. Reg. at 45,630. At this point, it is not the function of the Board to weigh all the evidence to ascertain whether it preponderates for or against a conclusion or whether it is in relative equipoise on that question. See Justus v. Principi, 3 Vet. App. 510 (1992). Rather, the Board must simply determine whether any of the evidence obtained since the final prior denial meets the definition of that which is new and material. If any evidence is new and material, the claim is reopened, and the underlying claim may be addressed with consideration given to all the evidence of record. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence presented is inherently incredible or beyond competence of witness). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). An injury incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. § 3.1(m) (2006). "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action. Willful misconduct 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) (2006). In the context of VA benefits, the simple drinking of alcoholic beverage is not in and of itself willful misconduct. However, if, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability, the disability will be considered the result of the veteran's willful misconduct. 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.301 (2006). Although the consumption of alcohol, in and of itself, does not per se constitute willful misconduct, it does if it is later determined that it was the proximate cause of injury. Id. VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (February 10, 1998). A person is held responsible for disabling injuries or death that resulted directly and immediately from indulgence in alcohol on an individual occasion. Willful misconduct in alcohol consumption cases is the willingness to achieve a drunken state and, while in this condition, to undertake tasks for which the person is unqualified, physically and mentally, because of alcohol. VA Adjudication Manual M21-1MR ("M21-1MR"), Part III.v.1.D.16.a. Prior to March 7, 2006, blood alcohol content percentages lower than .10 did not raise a presumption of intoxication under VA's Adjudication Procedure Manual M21-1, (M21-1), Part IV, Chapter 11, 11.04(c)(2) (using the standards of the National Safety Council, U.S. Department of Transportation and the Departments of the Army, Navy and Air Force). Blood alcohol content percentages from .05 to .10, however, do raise considerations of loss of judgment and muscular coordination. Id.; see also Forshey v. West, 12 Vet. App. 71 (1998) (noting such consideration for blood alcohol content in the range of .08 to .10), en banc affirmed, Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002). However, effective from March 7, 2006, there is a presumption of intoxication when a person's BAC is .08 or more. See M21- 1MR, Part III.v.1.D.16.c. (noting that by July 2005 all states, as well as Washington D.C. and Puerto Rico, have adapted a BAC of .08 as the legal level of intoxication). Determinations of willful misconduct in such instances depend on the facts found. An adverse determination requires that there must be excessive indulgence as the proximate cause of the disability or death in question. M21-1MR, Part III.v.1.D.16.b. In vehicular accidents, VA will consider combined factors such as evidence of excessive speed, improper diversion of attention to companions, or use of intoxicants. M21-1MR, Part III.v.1.D.17.d. From the investigative evidence in this case, the relevant facts that may have contributed to the veteran's injuries include: (1) driving shortly after consuming alcohol; (2) driving at excessive speed; and (3) driving without a seatbelt As noted above, at the time of the May 1991 administrative decision, the record included police reports, medical reports, statements of witnesses and the veteran, as well as investigative reports and line of duty determinations made during service. The following evidence regarding the accident which occurred on May 16, 1990 at approximately 11:30 to 11:45 PM was before the VA: (1) lab reports showed that blood alcohol contents of .11% (May 17, 1990 - 12:55AM) and .08% (May 17, 1990 - 1:40AM); (2) indications of speed well in excess of the posted speed limit of 30 MPH as attested to by witnesses, and as noted in the accident report which reveals that the car flipped over and his a light pole and reports of skid marks at the accident scene; (3) probable failure to wear a seatbelt, which although not possible to confirm this with total certainty, both the state trooper and fireman who extricated the veteran from the car at the scene of the accident, believed based on the veteran's position in the car that he was not wearing one. Ultimately, as a result of this accident the veteran suffered from conditions including spinal cord injuries causing paralysis from the waist down. Evidence associated with the claims file subsequent to the May 1991 LOD determination includes maps of the route and roads which were involved in the accident scene, as well as interpretation provided by the veteran's representative of what likely occurred and what could not have occurred the night of the accident in an attempt to impugn the accounts of witnesses and responders to the accident. This evidence, although new, is entirely immaterial to the line of duty determination. The maps in and of themselves, which were obtained from the internet, do not provide any additional information regarding the factors which were shown in 1991 to have contributed to the accident. In addition, the remote interpretations provided by the veteran's representative regarding the veteran's actions and activities of the night of the accident and his observations regarding the statements and actions of witnesses, responders and investigators constitutes new, but not material evidence. The representative was not a witness to the accident, and his accounts and interpretations which have been provided 10 years after the accident, are based on pure speculation and possibility and in some instances are entirely contrary to the evidence which was gathered either the night of the accident or shortly thereafter. Lay assertions cannot serve as the predicate to reopen a claim, and particularly so when such assertions are based only speculation and possibility, as opposed to facts. See Hickson v. West, 11 Vet. App. 374 (1998). Also submitted for the record in 2002 were BAC estimators copied from the internet based on a possible scenario involving the events of the night of the accident to include an estimate that the veteran drank between three and 4 beers or malt liquors prior to his accident. Other variables included the veteran's weight which was estimated as 130 pounds, as shown by the evidence at the time of the accident. Again, this evidence, although new is entirely immaterial to the claim. There is no way at this point to definitively determine how many drinks the veteran had prior to the accident. He provided a statement in 1990 indicating that he could not recall if he had been drinking before the accident and reported that he could not recall anything that happened from 4 hours prior to the accident until 2 days after the accident. No other witnesses were able to provide even an estimate of the amount of alcohol consumed by the veteran prior to the accident. Accordingly, again the evidence presented is based solely upon speculation and possibility and has no actual factual predicate. As the Court has stated, "[a]n opinion based upon an inaccurate factual premise has no probative value." See generally Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, this evidence, although new, is immaterial to the claim. With regard to both the maps, and BAC estimators and the interpretations and arguments provided by the veteran's representative pertaining to this evidence, the presumption of credibility does not apply; inasmuch as this evidence presented is both inherently incredible and beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record in this case already contains confirmed and competent evidence regarding the veteran's BAC level, in the form of two lab tests both done within two hours after the accident. To this point, this evidence represents the most reliable and probative evidence regarding the extent of the veteran's alcohol use prior to the accident. Also added to the record was a VA medical statement dated in March 2003. The doctor opined that having reviewed the veteran's records, it was completely clear that his blood alcohol level at the time of the accident could not be determined to any degree of medical certainty because there were so many factors that could influence blood alcohol (levels) including: volume and rate of ingestion, gastric emptying, distribution and metabolism of alcohol in the body, etc. It was explained that complete absorption of alcohol might take several hours. The doctor concluded that it was certainly possible that the veteran's blood alcohol at the time of the accident was lower than the blood alcohol level measured an hour or so following the accident, depending on the factors noted herein. Again, the March 2003 medical statement, although new, is not material evidence. The veteran's blood alcohol testing was determined based on laboratory testing, conducting twice within two hours of the veteran's accident and at those times it was established with medical certainty. While it may be true that that the veteran's blood alcohol level at the very time of the accident could not be determined to any degree of medical certainty; this matter is not at issue in this case. Initially, it was an impossibility to conduct a BAC test on the veteran at the time of the accident as it took approximately 1/2 hour after the accident just to extricate him from the car. The results of BAC testing were conducted as near to the time of the accident as possible, that is approximately one hour or so later, and irrefutably indicated that the veteran had consumed alcohol on May 16, 1990, prior to his accident. That test result of .11% BAC indicated that the veteran was legally intoxicated as measured about an hour following the accident. The doctor's statement does not establish or even suggest that the post-accident test results were inaccurate. Moreover, the medical statement overall does not in any way affect the initial line of duty determination, as that determination was made based upon not just upon a finding that alcohol was a factor in the accident, but so was speed, age, probable failure to wear a seatbelt and operating a car in a gross and reckless manner. In addition, the Board points out that findings regarding the role of alcohol use as pertains to the accident were not established by the BAT laboratory findings alone. The officer at the scene of the accident administered a test which was positive for alcohol intoxication and smelled alcohol on the veteran's breath. Thus, the medical statement is clearly not material to showing the veteran's injuries were not due to his own willful misconduct. Moreover, as to the doctor's conclusion that it was certainly possible that the veteran's blood alcohol at the time of the accident was lower than the blood alcohol level measured an hour or so following the accident again this evidence is not new and material. As the opinion is speculative, inconclusive and hypothetical, it fails to constitute material evidence. A number of Court cases have provided discussion on this point of weighing medical opinion evidence. See Davis v. West, 13 Vet. App. 178, 185 (1999) (any medical nexus between the veteran's in-service radiation exposure and his fatal lung cancer years later was speculative at best, even where one physician opined that it was probable that the veteran's lung cancer was related to service radiation exposure); Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (private physician's opinion that veteran's preexisting service-related condition may have contributed to his ultimate demise too speculative to be deemed new and material evidence to reopen cause of death claim); Moffitt v. Brown, 10 Vet. App. 214, 228 (1997) (physician's opinion that "renal insufficiency may have been a contributing factor in [veteran's] overall medical condition" too speculative to constitute new and material evidence to reopen cause of death claim); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (on application to reopen a service connection claim, statement from physician about possibility of link between chest trauma and restrictive lung disease was too general and inconclusive to constitute material evidence to reopen). Primarily, the only other evidence presented for the record since the 1991 LOD determination consists of the veteran's post-service medical records. However, evidence describing the veteran's current condition is not material to whether the veteran's injuries sustained in May 1990 were due to his own willful misconduct. See e.g. Morton v. Principi, 3 Vet. App. 508 (1992). Therefore, these records do not serve to reopen the veteran's claim. Although the Board is sympathetic to the plight of the appellant, the Board must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). Unfortunately, the totality of the circumstances in this case clearly dictate that the claim cannot be reopened at this time in the absence of the submission of both new and material evidence. In short, the Board finds the evidence submitted since the March 1991 administrative decision is not new and material and does not serve to reopen the veteran's willful misconduct LOD determination. Until the veteran meets his threshold burden of submitting new and material evidence sufficient to reopen the claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence has not been received to reopen the willful misconduct determination, and the appeal is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs