Citation Nr: 1328488 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 11-10 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for residuals of fractured right femur (leg injury). 2. Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from June 1998 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. The Veteran sustained a TBI and right femoral fracture due to a motor vehicle accident that occurred during service in December 2001. 2. The service treatment records do not demonstrate any additional TBIs or right leg injuries aside from those incurred as a result of the motor vehicle accident, nor does the Veteran contend that he incurred any additional injuries during service. 3. The Veteran's TBI and right leg injury were not incurred in the line of duty and were the result of the Veteran's willful misconduct. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right leg injury have not been met. 38 U.S.C.A. §§ 105, 1110, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2012). 2. The criteria for service connection for TBI have not been met. 38 U.S.C.A. §§ 105, 1110, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Notice and Assistance Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained VA treatment records, the Air Force special investigative report, the Air Force fitness report, and the Veteran submitted statements on his behalf. There was no indication that the Veteran received any private treatment during the course of his appeal outside of his emergency room visit immediately following the accident. The medical records from that visit were transferred with the Veteran to a VA facility and a summary of the records is included in the claims file. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. Based on the evidence of record the Board finds that a VA examination is not necessary to fully adjudicate the Veteran's claims. 38 C.F.R. § 3.159(c)(4). For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). II. Service Connection The Veteran filed a claim for service connection for his currently diagnosed TBI and right leg injury in June 2009. He contends that his injuries occurred while on active duty and were not the result of his own willful misconduct. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nichols, 21 Vet. App. 303, 309 (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). No compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110. 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. 38 C.F.R. § 3.301. "In line of duty" means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct. A service department finding that injury, disease or death incurred in the line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. 38 C.F.R. § 3.1(m). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. An action will be willful misconduct if 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. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. 38 C.F.R. § 3.1(n). The facts in this case show that the Veteran sustained a TBI and right femoral fracture as the result of a motor vehicle accident in December 2001. The Veteran continues to experience the effects of the TBI and residual pain from the leg fracture. Thus, the Veteran has a current disability and the Board now turns to the issue of in-service injury. See Davidson, 581 F.3d 1313. As a preliminary matter, there is no evidence of record that the Veteran sustained any additional injuries while on active duty, nor does he claim that his current disabilities are the result of anything other than his December 2001 motor vehicle accident. A physical evaluation conducted at enlistment in July 1997 found the Veteran to be in good health and noted no abnormalities involving the Veteran's right leg or cognitive function. The Air Force investigated the Veteran's accident and made a recommendation regarding his "line of duty" status. The report of investigation shows that on the evening of December 24, 2001, the Veteran was hosting a get together of 8-10 air force honor guard members. Several witnesses in attendance stated that he had consumed at least two drinks prior to the accident. Reconstructing the events of that evening revealed that the Veteran had as little as 3 hours of sleep in a 38 hour period and had spent the better part of the evening of the 24th drinking, including consuming several drinks at a local pool hall. The investigative report also detailed the events immediately surrounding the motor vehicle accident. Eye witnesses indicated that the Veteran's motorcycle was weaving in and out of traffic and travelling upwards of 80 mph in a 35 mph zone. At the time of the collision the Veteran had been attempting to pass two cars in a no pass zone when the lead car made a legal left turn. This placed the car directly in the path of the Veteran's vehicle. Witnesses stated that they did not see the Veteran attempt to stop or swerve to avoid the collision. Reconstruction of the accident determined that the minimum speed of the motorcycle, based on the distance the Veteran was found from the point of impact and analysis of the speedometer, was at least 63 mph. EMS at the scene stated that they detected the presence of alcohol on the Veteran's person. Additionally, it was reported to a police detective by another officer (who accompanied the Veteran to the hospital) that blood tests revealed the Veteran's blood alcohol content (BAC) to be 0.11 upon arrival at the hospital. However, these blood tests were not included in the claims file nor were they available to the police without a subpoena. The detective ultimately concluded that the Veteran was at fault for the accident and regardless of the alcohol use would have faced an obvious and provable case of reckless driving. As a result of the accident the Veteran suffered massive cranial trauma and an open fracture of the right femur and spent several months in a coma. After completing his investigative report which included reviewing the eyewitness testimony, accident reconstruction, police accident report, and interviewing witnesses and police, the Air Force investigator concluded that: 1. The Veteran had voluntarily used alcohol before operating a motor vehicle, but the preponderance of evidence for misconduct on the grounds of alcohol abuse was not conclusive. 2. Regardless of alcohol use, the Veteran's operation of the motor vehicle was egregiously reckless with a wanton disregard for the risk. 3. The Veteran's excessive speeding, illegal pass, and driving on the wrong side of the road were intentionally wrongful and negligent. The investigator ultimately found that the Veteran's inherently dangerous operation of his vehicle was the proximate cause of his injury and therefore, he was not in the line of duty due to his own misconduct. The investigator's conclusion was affirmed by a Staff Judge Advocate after a legal sufficiency review of his investigative report. An Air Force Physical Evaluation Board was later convened to hold a formal hearing on the Veteran's fitness. The members ultimately found that the Veteran committed willful misconduct and was not in the line of duty when his injuries occurred. As a result of his injuries the Veteran was medically retired from the Air Force. In response to the Veteran's claim, the RO in Wichita issued an administrative decision regarding the Veteran's "line of duty" status at the time of his accident. Based on the police report and the Air Force's line of duty determination/review, the RO concluded that the Veteran's injuries were the result of his own willful misconduct and were not sustained in the performance of his assigned military duties. In support of his claim the Veteran submitted a statement disagreeing with the administrative findings issued by the RO and has asserted that he was not consuming alcohol at the time of the accident. The Veteran cites the police report in support of his argument that he was not drinking on the evening in question. Additionally, he states that he does not remember passing on a double yellow line (no pass zone). However, the Veteran also states that to this day he has not remembered anything about the accident. After review of the investigative report, police report and Veteran's statements, the Board finds that the Veteran's willful misconduct was the proximate cause of his injuries and resulted in the accident sustained in December 2001. The investigation conducted by the Air Force and subsequent review of the investigation appear to be thorough and well reasoned. The investigation found that the Veteran was operating his vehicle well above the posted speed limit and was attempting to pass in a no pass zone at the time the accident occurred. These findings are supported by the police report which also credited the Veteran with causing the accident. It is clear that operating a motor vehicle at 30 mph above the posted speed limit while also attempting to pass in a no pass zone constitutes knowing and reckless behavior as contemplated by 38 C.F.R. § 3.1(n). The Board does not find the Veteran's statements regarding whether or not he crossed a double yellow line to be credible as he also admits to not remembering anything about the accident. Therefore, his statements concerning the accident are not afforded any probative weight. While the Veteran is correct in pointing out that the police report does not mention alcohol being a factor in the crash, this fact does not affect the credibility or accuracy of the Air Force's "line of duty" analysis as the finding was not based on consumption of alcohol but rather on the Veteran's negligent and wantonly reckless operation of his vehicle. It is also clear from the record that the Veteran's injuries were a direct result of his motor vehicle accident and the Veteran does not contend that he sustained any additional injuries in service that may have caused his current disabilities. In sum, the Board finds that the weight of the evidence demonstrates that the Veteran's motor vehicle accident and resulting injuries sustained in December 2001 were due to his own willful misconduct and were not in line of duty, such that the underlying service connection claims are denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a right leg injury is denied. Entitlement to service connection for a TBI is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs