Citation Nr: 1322303 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 06-20 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to service connection for an acquired psychiatric disorder, other than depression. 2. Entitlement to service connection for residuals of nasal injuries, to include a deviated septum. 3. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1957 to July 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied entitlement to service connection for sinusitis; residuals of nasal injuries, to include a deviated septum; and a mental disorder, to include PTSD. The March 2005 rating decision was issued pursuant to an Administrative Decision promulgated by the Cleveland RO earlier that same month which determined that the Veteran's injuries sustained in an auto accident on June 23, 1958 were not in the line of duty, and were the result of the Veteran's willful misconduct. In the VA Form 9, Appeal to the Board of Veterans' Appeals, received in November 2007, the Veteran indicated that he wished to testify at a hearing before the Board at the local RO. In March 2009, the Veteran withdrew his hearing request and did not seek to reschedule the hearing. As such, there is no hearing request pending at this time. 38 C.F.R. § 20.702(e). The case was remanded by the Board multiple times for additional development of the record. To the extent possible, the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a December 2007 statement, the Veteran requested that the RO reconsider its determinations as to several issues that were denied in a rating decision of December 2007. The Veteran also raised a new claim in that statement, which was addressed by the RO in a May 2008 rating decision. In addition, the RO granted service connection for depression therein. However, it does not appear that the RO reconsidered the other determinations made in the October 2007 rating decision as was requested by the Veteran. Accordingly, this matter is referred to the RO for the appropriate consideration. FINDINGS OF FACT 1. In September 1958, a Judge Advocate General (JAG) found that the Veteran's injuries were suffered in the line of duty and not the result of his own misconduct, in part because the extent of his intoxication at the time of the accident was not clear. 2. The Veteran was under the influence of alcohol while driving his automobile at the time of the automobile accident during service in July 1958 and alcohol abuse was the proximate cause of the resultant injuries and acquired psychiatric disorders, other than depression. 3. The September 1958 JAG finding is patently inconsistent with the facts and the requirements of laws administered by VA. 4. The Veteran's injuries to his nose as well as his acquired psychiatric disorders other than PTSD were proximately caused by his own willful misconduct. 5. The weight of the competent evidence of record establishes that the Veteran has a current vasomotor rhinitis that is more likely than not unrelated to his in-service motor vehicle accident, with his smoking as a probable significant contributing factor. 6. The competent and probative evidence of record establishes that the Veteran has no current external nasal deformity or deviated nasal septum as a result of injuries sustained in the in-service automobile accident in July 1958. CONCLUSIONS OF LAW 1. The injuries sustained in the July 1958 automobile accident were the result of the Veteran's own willful misconduct, and thus were not incurred in the line of duty. 38 U.S.C.A. §§ 105, 501, 1131, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(m), 3.1(n), 3.102, 3.159, 3.301 (2012). 2. The criteria for entitlement to service connection for acquired psychiatric disorders, other than depression, are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303 3.304 (2012). 3. The criteria for entitlement to service connection for residuals of nasal injuries, to include a deviated septum, are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303 (2012). 4. The criteria for entitlement to service connection for sinusitis are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in June 2004. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a service connection claim and the relative duties of VA and the claimant to obtain evidence. Although the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection are denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). That notwithstanding, the RO cured the defect by sending a subsequent letter to the Veteran in July 2007 that specifically notified the Veteran regarding the assignment of disability ratings and effective dates for any grant of service connection. The claims were thereafter readjudicated. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, records from the Social Security Administration, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Importantly, the Board remanded the matter to obtain additional records on the Veteran's behalf. The RO wrote to the Veteran in July 2009 and November 2009 requesting that he provided completed authorization forms that would allow VA to obtain records from the Fremont Emergency Ambulance Service, the Centerville Police Department and the Fairmont Hospital. The Veteran's November 2009 response indicated that he had contacted each of those facilities and that the records had been destroyed. The RO also requested the line of duty determination from the National Personnel Records Center which responded that the information requested was not a matter of record. In a statement received at the RO in August 2010, the Veteran specifically indicated that he had no additional evidence to submit regarding his appeal and requested the expedited processing of his claim. In the September 2012 remand, the Board concluded that there remained additional avenues to search that may contain pertinent records with regard to the circumstances surrounding the Veteran's July 1958 accident. Additional relevant records were received in May 2013 from the Naval Judge Advocate General's (JAGs) office. The RO attempted to obtain records from other sources including the Naval Criminal Investigative Service (NCIS) and two county court locations in California. The only positive response was from the Naval JAG. The court and NCIS replied that no records were found. NCIS also indicated that files of this nature from the 1958 timeframe would be destroyed and no longer retained. The Veteran was informed of the unavailability of the records pursuant to the June 2013 supplemental statement of the case. The Veteran submitted a response indicating that he had no further evidence to submit. Accordingly, VA has substantially complied with the Board's remand directives. In addition, VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. In the March 2005 administrative decision, the March 2005 rating decision, the May 2006 Statement of the Case, and multiple supplemental statements of the case, the Veteran was notified that his claim was being denied because of a finding of willful misconduct. It is clear based on the record that the Veteran has actual knowledge of the fact that this willful misconduct issue must be resolved before the underlying claim on the merits can be addressed. The Veteran, by his own statements, has pointed to the evidence of record that supports his claim in this regard - the JAG report. In light of the foregoing, another remand to provide additional notice and assistance regarding the willful misconduct issue would be of no useful purpose and would result in unnecessarily impose additional burdens on VA with no benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Legal Analysis The Veteran seeks service connection for residuals of injuries sustained as a result of an automobile accident in service in July 1958. The Veteran maintains that he has PTSD as a result of the accident, as well as nasal injuries to include a deviated septum and sinusitis. More specifically, in a July 2004 Report of Accidental Injury in Support of Claim for Compensation, the Veteran indicated that he was involved in a July 1958 automobile accident during his military service. He reported that he rear-ended a parked gas truck and was knocked unconscious. Two passengers in the vehicle were injured, and he suffered from head, facial, nose, chest, and back injuries. The Veteran stated that at the time of the accident, he was on an authorized pass from active duty and was driving under the influence of alcohol. Prior to making a determination as to whether the Veteran's claimed disorders are related to his active service, the Board must first determine whether the July 1958 automobile accident occurred in the line of duty and was not due to willful misconduct or whether the accident was due to the Veteran's own willful misconduct. Review of the record reveals the Veteran was admitted to the United States Naval Hospital in Oakland, California, in July 1958, following an automobile accident. The hospital report states that the Veteran was the driver of the vehicle that was involved in the accident. He was initially treated at Fairmont Emergency Hospital and transferred to the naval hospital after his vital signs had stabilized. Upon admission, the Veteran was noted as being disoriented, confused, and talked repeatedly to people who were not present at the facility. There was evidence of possible concussion. Although, he responded to painful stimuli without difficulty, there was "evidence of possible ethanol ingestion prior to the accident." The Veteran was hospitalized for approximately twelve days and discharged with a diagnosis of lacerated wounds to the face and chest, with no artery or nerve involvement. It was determined that the Veteran's injuries were not due to his own misconduct, and he was discharged back to active duty. Prior to discharge from service, in September 1958, a Judge Advocate General (JAG) held that the Veteran's injuries were suffered in the line of duty and not the result of his own misconduct. A copy of the JAG's informal investigative report of the July 1958 accident was received at the Board in May 2013. The report notes the following findings: The Veteran was in a liberty status in July 1958 at the time of the accident, which occurred at approximately 11:40 pm. The Veteran was driving TB's car (a fellow soldier also on liberty) and there were three other passengers in the rear seat. The Veteran suffered cerebral concussion and facial lacerations as he was thrown partly through the windshield. The Veteran was driving at a speed of approximately 40 miles per hour in a 35 mile per hour zone, in clear, moonlit, and dry weather conditions. The vehicle's headlights were not turned on at the time of the accident. The accident occurred after the Veteran attempted to pass a truck on Highway 17, but then discontinued his attempt to pass when observing oncoming traffic in the opposite lane on the two lane highway and returned too far to the right side of the road, striking a parked gasoline truck located on the right shoulder of Highway 17. All passengers in the car were asleep at the time of the accident. The Veteran was given a sobriety test at 2:50 am, approximately three hours after the accident, at the US Naval Hospital in Oakland, California, and the results indicated a blood alcohol level of 2.0 MGM/CC. The accident was witnessed by a county police officer but no statement could be obtained from him until after possible legal action is taken. The Veteran and all passengers had been drinking prior to the accident. The investigative report made the following findings: (1) The accident resulted from the Veteran's negligence in failing to exercise normal precaution while driving at night in moderate traffic conditions; (2) The Veteran was negligent in failing to turn on his headlights after stopping for gasoline one or two miles back on the highway (with this failure possibly attributed in part to the driving through a lighted town just after refueling and prior to the accident); (3) The primary cause of the accident was believed to be an error in judgment in returning too far toward the right side of the highway after abandoning his attempt to pass. A further contributing factor was the absence of illumination from his headlights to enable him to see the parked gasoline truck in sufficient time to avoid the accident. The report further found that although the blood alcohol determination of the Veteran revealed a value of 2.0, there was no clear evidence that the Veteran was under the influence of alcohol sufficiently to impair his mental processes and thereby cause the errors of judgment precipitating the accident. As a result of this finding, the JAG determined that the accident did not occur as a result of the misconduct of any person in the naval service, and, that the accident occurred while the Veteran was in the line of duty and not as a result of their own misconduct. Also enclosed with the JAG investigative report was a July 1958 injury report from the Oakland naval hospital. The report specifically indicates that the Veteran was under the influence of alcohol at the time of the accident, that he had been drinking, with one of the passengers in the car noting that the Veteran drank approximately one pint of vodka. The report also shows that a Bogens test for alcohol confirmed the 2.0 blood level finding. Also of record is a copy of a criminal complaint filed in a California county court in August 1958 against the Veteran for unlawfully and willfully operating a vehicle upon a highway in a willful and wanton disregard of safety of persons and property, and as a result therof caused injury to the passengers in the car. The Veteran plead guilty to the charge and received two years probation and a fine of $220 and, notably, an order of "no drinking." Throughout the pendency of this appeal, the Veteran has contended that his PTSD, sinusitis, and residuals of nose injuries are due to the July 1958 in-service accident. In numerous personal statements of record, the Veteran admits that alcohol led to the July 1958 accident. In a May 2005 PTSD questionnaire, the Veteran recounts the facts surrounding the accident, and states that "alcohol led to the car accident." He further added that he stayed intoxicated while on days of liberty, and was "drunk most of the time." Similarly, during a December 2004 VA examination, the Veteran reported to the examiner that he was driving while intoxicated in July 1958, which caused serious wounds to himself, and a passenger (fellow soldier) to be ejected from the automobile. In December 2004, the Veteran was afforded a VA examination for his claimed sinusitis, residuals of nose injuries, and PTSD. The December 2004 VA examiner diagnosed him with chronic PTSD, a history of motor vehicle accident with nasal fracture, and chronic vasomotor rhinitis. The VA examiner concluded that there was no current evidence of a deviated nasal septum or significant nasal deformity, and his congestion was most likely a vasomotor rhinitis, which was more likely than not unrelated to the July 1958 in-service automobile accident. On the other hand, the VA examiner opined that the Veteran's PTSD was most likely caused by or a result of military trauma at the time of the motor vehicle accident in the service. In a March 2005 Administrative Decision, the RO determined that the Veteran's injuries sustained in the July 1958 automobile accident were not incurred in the line of duty, and were due to his own willful misconduct. The RO explained that even though there is a service department finding of the accident occurring in the line of duty, there is no justification or rationale in support of the decision reached in September 1958 by the JAG. Furthermore, the RO found that the Veteran's own admission of being under the influence of alcohol at the time of the accident, together with the hospital treatment report suggesting possible ethanol ingestion prior to the accident carried more weight in determining the cause of the accident. Finally, the RO found that the Veteran presented no mitigating factors for rear-ending a parked truck, such as bad weather. In light of these findings, the RO issued a March 2005 rating decision, in which the Veteran's claims were denied because his injuries due to the July 1958 accident were attributable to his own willful misconduct and were not incurred in the line of duty. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(d). 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 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). "Willful misconduct" is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences and must be the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n)(1), (3). In the context of VA benefits, the simple drinking of alcoholic beverages is not of itself willful misconduct. However, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). 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. 38 C.F.R. § 3.1(m), (n). 38 U.S.C.A. § 105 creates a presumption of service connection for injuries that occur during active duty unless a preponderance of the evidence establishes that the injury was the result of the person's own willful misconduct. Thomas v. Nicholson, 423 F.3d 1279, 1284-85 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004). Based on the evidence in this case, the JAG report finding (service department finding) that the Veteran's car accident was in the line of duty and not due to his willful misconduct is patently inconsistent with the facts and the requirements of laws administered by VA. As to the facts, the JAG report essentially found that there was not enough evidence to show that the Veteran was under the influence of alcohol sufficiently to impair his mental processes and therby cause errors of judgment precipitating the accident. This finding, however, is patently inconsistent with the facts in this case. As previously reported, the Veteran sustained a concussion and injury to the nose in an automobile accident in July 1958. He was transported to Fairmont Emergency Hospital via ambulance and transferred to the Oakland naval hospital after stabilization. The report from the Oakland naval hospital provides ample evidence showing that the Veteran was under the influence of alcohol at the time of the accident. This report, as well as other reports summarized above, collectively demonstrate that the Veteran had ingested a significant amount of alcohol prior to the accident. First, the hospital report specifically indicated that the Veteran had a blood alcohol level of 2.0, and one of the passengers in the car accident reported that the Veteran had consumed approximately one pint of vodka prior to the accident. Although the JAG report concluded that the Veteran's negligence in keeping control of his vehicle, and the lack of headlights caused the accident, the JAG report fails to address the possible effects that the alcohol had on this negligence. In other words, the JAG report did not consider that the effects of the alcohol consumption may have led to the decrease in motor skills and the lack of awareness to notice that his headlights were turned off. Further, the objective evidence of record clearly serves as a factual basis to find that the Veteran had ingested a significant amount of alcohol prior to the accident. The Veteran has never argued against this fact; and, moreover, has on several occasions supported this proposition by his own admissions. As noted above, the Veteran provided numerous statements which are of record indicating that he was, in fact, intoxicated at the time of the accident. The Veteran has also reported that he "stayed drunk most of the time while on liberty." The Veteran is certainly competent to report a state of intoxication upon consuming alcohol, as this does not require medical expertise. The numerous statements by the Veteran that he was drunk at the time of the July 1958 accident, along with the objective findings of a blood alcohol level of 2.0 nearly three hours after the accident, the passenger's statement that the Veteran consumed approximately a pint of alcohol before driving, and the medical reports specifically noting that the Veteran was under the influence of alcohol shortly after the accident provides clear evidence that the Veteran was intoxicated at the time of the accident. In other words, this evidence collectively provides a factual basis that is patently inconsistent with the JAGs finding that the evidence of record is not clear as to what role, if any, alcohol played in the accident. The most probative evidence of record is the Veteran's own admission that he was drunk at the time of the accident, and that he stayed drunk the entire time he was on liberty, which is consistent with the objective evidence of a blood alcohol level of 2.0 nearly 3 hours after the accident. The Veteran is certainly competent to attest to factual matters of which he had first-hand knowledge, e.g., driving drunk, and being intoxicated at the time of a car accident. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran argues, however, that regardless of his own admissions regarding his intoxication at the time of the accident, the JAG report noting that the accident was in the line of duty and not due to his own willful misconduct should be binding on VA. The Board acknowledges that the JAG report did, in fact, find the Veteran's auto accident in the line of duty, and not due to the Veteran's own willful misconduct. However, VA regulations state that 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. See 38 C.F.R. § 3.1(n). In addition to being patently inconsistent with the facts, as noted above, the JAG finding is also patently inconsistent with the requirements of laws administered by VA. The facts in this case are clear. The Veteran was drunk at the time of the accident. This is not in dispute as the Veteran has, by his own admission, reported such and his credibility in this regard is not questioned. Based on this fact, the requirements of the laws administered by VA indicate that the Veteran is barred from benefits for any disability related to the car accident in 1958 because any injuries suffered as a result of that accident were sustained as a result of the Veteran's own willful misconduct. In other words, VA regulations clearly establish that service connection may not be granted for injuries proximately caused by alcohol abuse. According to 38 C.F.R. § 3.301(c)(2), 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 person's willful misconduct. This is patently inconsistent with the service department findings that there was no clear evidence that the Veteran was under the influence of alcohol sufficiently to impair to his mental processes and thereby cause the errors of judgment precipitating the accident. The fact that the Veteran's blood alcohol level was 2.0 coupled with the Veteran's admission that he was drunk at the time of the accident is clear evidence that the Veteran was sufficiently impaired to cause the accident. It is significant that at the time the JAG report was prepared, there is no evidence indicating that the Veteran freely admitted at that time that he was drunk at the time of the accident. Thus, the current facts provide additional evidence that was not necessarily known at the time the JAG report was prepared. As the Veteran was drunk at the time of the July 1958 car accident, the Veteran's car accident was not in the line of duty and was due to the Veteran's willful misconduct. As the JAG finding is patently inconsistent with the facts and the requirements of laws administered by VA, it is not binding on VA. In light of the foregoing, the Veteran's acquired psychiatric disorder other than depression, and any residuals regarding his nose and sinuses, were proximately due to his own willful misconduct and service connection may not be granted for these disabilities. 38 C.F.R. § 3.301(a). Even if the September 1958 JAG finding were binding on VA, the preponderance of the evidence is against the claim of service connection for sinusitis and a deviated septum. The VA examiner in 2004 concluded that there was no current evidence of a deviated nasal septum or significant nasal deformity, and his chronic vasomotor rhinitis was more likely than not unrelated to the July 1958 in-service automobile accident. Although the Veteran has provided before and after pictures of his nose showing a difference in shape, the examiner in 2004 indicated that there was no deformity of the nose that would constitute a disability per se. ORDER The appeal is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs