Citation Nr: 1317136 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 07-32 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing in November 2008. The case was previously before the Board in February 2009 when it was remanded for additional development. In December 2009, the Board found the Veteran had submitted new and material evidence, and reopened his claim for service connection for a head injury. The claim was then remanded for additional development and consideration on the merits. The Board also notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran sustained a head injury on October 31, 1980. 2. The evidence of record demonstrates that the Veteran's in-service injury on October 31, 1980, was not incurred in the line of duty, but rather was incurred as a direct result of an act of willful misconduct due to alcohol intoxication. 3. At the time of the injury, the Veteran's blood alcohol concentration was at least 2.3 grams of alcohol per 100 milliliter (ml) of blood. CONCLUSION OF LAW The Veteran's head injury on October 31, 1980, was the result of willful misconduct, such that the criteria for entitlement to service connection for his head injury are not met. 38 U.S.C.A. §§ 105(a), 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(k), (m), (n), 3.301, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an April 2006 letter, issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, post-service treatment records, and hearing testimony. In addition, as the probative evidence indicates the Veteran's head injury in service was the result of willful misconduct, no VA examination is warranted based on the facts of this case. The Board also notes that actions requested in the prior remands have been undertaken. Indeed, an Administrative Decision was issued addressing whether the Veteran's claimed head injury was the result of willful misconduct. VA treatment records were also obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ asked specific questions, however, directed at identifying whether there was evidence that would help substantiate the Veteran's claim and specifically sought to identify any pertinent evidence not currently associated with the claims file. In addition, the Veteran volunteered his pertinent treatment history and symptoms prior, during and since service. Further, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that no further action pursuant to Bryant is necessary and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). However, direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a); see also § 3.1(m) (defining "in line of duty" in such terms). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on VA, unless it is patently inconsistent with the facts and the requirements of laws administered by VA. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 U.S.C.A. § 3.1(n). The simple drinking of alcoholic beverage is not of itself willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). Further, an injury or disease incurred during active service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs. For this purpose, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability or death of the user. 38 C.F.R. § 3.301(d). The Veteran's service treatment records reveal that on October 31, 1980, he was involved in an altercation and passed out after drinking alcohol. The Veteran did not give any history, simply going to sleep. The smell of alcohol was present and he had a hematoma of the right forehead and a black right eye. His blood alcohol level was reported to be 2.3. There is competent medical evidence that the Veteran was intoxicated at the time he arrived for treatment on October 31, 1980. Patient blood work reveals that the Veteran's blood alcohol concentration (BAC) was 2.3. A person is held responsible for disabling injuries or death that resulted directly and immediately from indulgence 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. There is a presumption of intoxication when a person's BAC is 0.08 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 0.08 as the legal level of intoxication). In this case, the Veteran's BAC was 2.3 at the time of treatment on October 31, 1980, the day of the head injury. As such, the Veteran is presumed to have been intoxicated at the time of the head injury. Furthermore, 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 while on duty, and, while still in this condition, to involve himself in an altercation. The Board notes that the Veteran testified at the November 2008 Travel Board hearing that he was assaulted and bumped his head on a concrete floor. While the Veteran would normally be competent to testify that he was assaulted in service, as he is attesting to matters capable of lay observation and of which he has direct knowledge, in this instance given that he was highly intoxicated (with a BAC of 2.3), the Board finds his recollection of events to be highly unreliable. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that which he or she has personal knowledge). Moreover, even if the Veteran is competent to testify that he was assaulted in service, the Board finds that his testimony is clearly self-serving, compensation-driven, and not credible. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). The Board finds significant that his testimony at the hearing is the first occasion in which he has reported he was assaulted in service. For the reasons set forth above, the Board finds that the Veteran's claimed head injury was the result of his intoxication. As such, the claimed disability is the result of willful misconduct and service connection is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a head injury is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs