Citation Nr: 1333960 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-08 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Allan T. Fenley, Attorney ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1960 to December 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Board notes that the Veteran has asserted he is "permanently and totally disabled" due to his back disability. In the August 2008 decision, the RO declared a claim for total disability based on individual unemployability (TDIU) moot because service connection for the Veteran's back disability was denied. Because the Veteran has no other service-connected disabilities on which to base a TDIU claim, the Board similarly finds the issue moot. See 38 C.F.R. §§ 4.15, 4.16. FINDINGS OF FACT The Veteran's back injury was the result of a motor vehicle accident during service that resulted from willful misconduct on his part, and the evidence of record has not otherwise demonstrated a current back disability was otherwise incurred in service. CONCLUSION OF LAW The criteria for service connection for back disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.301, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). However, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and was not the result of a veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301; see also 38 C.F.R. § 3.1(m) (defining "in the line of duty" in such terms). A service department finding that injury, disease or death occurred in 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). Moreover, "willful misconduct" means 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. 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. In addition, 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 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). Furthermore, 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. 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 to or death of the user. 38 C.F.R. § 3.301(d). In the present appeal, the Veteran asserts that his back disability, specifically diffuse idiopathic skeletal hyperostosis (DISH) with severe lumbar spine spondylosis and osteoarthritis, is a result of a motor vehicle accident that occurred on June 20, 1963. In a July 2008 statement in support of his claim, the Veteran described the incident as the "qualifying event accident while [he] was on active duty" and in his application for benefits, the Veteran stated, "my disability was caused by the car wreck I had on 6/20/63." As an initial matter, the presence of a current disability and the occurrence of the motor vehicle accident in June 1963 are not at issue in this case. Treatment records from "Dr. N.T" include x-rays in July 2002 that show "large osteophytes . . . consistent with DISH involving cervical, thoracic, and lumbar spines." In addition, the Veteran's service records include treatment records and investigation information concerning a June 1963 motor vehicle accident, including a Report of Investigation from September 1963 that identified the Veteran as the driver involved in the accident on June 20, 1963. However, as will be described below, the evidence shows that the Veteran's motor vehicle accident and resulting injuries were not incurred in line of duty because they were due to willful misconduct and therefore direct service connection cannot be granted. See 38 C.F.R. § 3.301. The September 1963 investigation report notes the Veteran was mentally sound and not present for duty on June 20, 1963. The report indicates that the Veteran "was driving a privately owned vehicle . . . while under the influence of alcohol . . . at an excessive rate of speed [and] lost control of the vehicle." The report also indicated that the Veteran's injuries included "[c]ontusions and abrasions entire back" and that intentional misconduct or neglect was the proximate cause of the incident. According to the report, the Veteran was admitted to William Beaumont General Hospital, where a medical officer examined him and found he was under the influence of alcohol. The Veteran was also found to be mentally sound at that time. Subsequently, in his June 25, 1963 statement to the investigator, the Veteran himself indicated that he had drank two beers and some whiskey on the night of June 20, 1963. Furthermore, in a witness statement from "R.T." taken on July 3, 1963, "R.T." stated that he saw a vehicle crash and ran over to the scene. When he spoke to the Veteran he, "smelled what appeared to be the odor of alcohol on [the Veteran's] breath." The Veteran was found to have culpable negligence by the Office of the Provost Marshal and he was charged with involuntary manslaughter. In a September 1963 memorandum with the subject identified as "Line of Duty Status," the Adjutant General provided a final determination as to line of duty. That final determination was that the Veteran's injuries sustained on June 20, 1963 were not in line of duty and "due to own misconduct." As noted, a finding that an event was in the line of duty is binding on VA, but the converse is not true. As such, VA must independently determine whether the Veteran's actions in this case constituted willful misconduct. For the following reasons, the Board concurs with the service department's finding that the Veteran's actions on the night of June 20, 1963 constituted willful misconduct on his part. First, the Veteran by his own admission consumed alcohol prior to operating the motor vehicle. The precise level of intoxication is not known at this time, as the investigation report indicates that no blood alcohol test was administered. However, witnesses at the scene did detect the odor of alcohol on the Veteran's breath, and the accident investigator noted in his report that the Veteran operated the vehicle under the influence of alcohol. Additionally, the statement of medical examination and duty status similarly noted that the Veteran was under the influence of alcohol at the time of the accident. Secondly, above and beyond any drinking that the Veteran had been doing, he was clearly and willfully operating the motor vehicle in a highly reckless manner. Witnesses to the scene reported having observed the Veteran weaving through traffic at a high rate of speed. One witness stated that the Veteran's car roared passed him at a high rate of speed which he estimated was 90 mph, and then fishtailed to the left to pass two other cars, serving as further indication of not only high speed, but also recklessness. A second witness also estimated that the Veteran had been traveling somewhere between 80-90 mph. The Veteran was traveling at such a high rate of speed that his car rolled over eight times and traveling an estimated 543 feet before coming to a stop. As noted, "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. Here, there is little doubt that the Veteran knew he was engaging in a known prohibited action, whether drinking and driving, or speeding. Moreover, the incredibly high rate of speed, estimated by witnesses to be approximately twice the posted speed limit, and weaving through cars, suggests a wanton and reckless disregard of its probable consequences. It is true that mere technical violation of police regulations or ordinances does not per se constitute willful misconduct, but here the Veteran's driving infractions went well beyond technical violation. Based on the preponderance of the evidence, the Board finds that the Veteran's actions on the night of June 20, 1963, including both driving while under the influence of alcohol and recklessly driving, clearly constitute willful misconduct. As a result, direct service connection for a back disability cannot be granted. See 38 C.F.R. § 3.301. The Board has also considered the possibility that the Veteran's current back disability was related to an in-service incident apart from the motor vehicle accident. However, here there is no indication of a back disability prior to the June 1963 motor vehicle accident or any in-service back injury subsequent to the motor vehicle accident . Service treatment records contain a notation of "back pain" on July 27, 1961, but the medical officer attributed the pain to the Veteran's previous "kidney trouble" and dysuria or "urinary infection," and ultimately suggested increasing fluids. There are no other indications of back pain or injuries in service, and on an October 1963 medical examination report, the medical professional found the spine, other musculoskeletal, to be normal, providing evidence against the Veteran's claim. As described, there is no evidence otherwise linking the claimed back disability to service, other than to the motor vehicle accident he sustained therein. However, as discussed, the Board concurs with the line of duty assessment that was rendered in the 1960s that the Veteran's actions in June 1963 constituted willful misconduct, rendering the accident outside of the line of duty. As such, the Board finds that the preponderance of the evidence is against the claim for service connection for a back disability, and the appeal as to this issue must be denied. There is no reasonable doubt to be resolved in this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, a February 2008 letter informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Although the letter did not specifically reference willful misconduct with regard to 38 C.F.R. § 3.301, the RO provided the language of the statute in its August 2008 decision. The Veteran's claim was then reajducated via a Statement of the Case in February 2011. Therefore, any defect concerning the timing of the notice requirement was harmless error. See Prickett v. Nicholson, 20 Vet. App. 370 (2006) (holding that VA may cure timing defects in affording statutory notice to claimant through compliance with proper remedial measures, such as the issuance of a fully compliant notification, followed by readjudication of the claim). Regarding the duty to assist, VA must make reasonable efforts to assist a 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; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not provided a medical opinion with regard to this claim. However, as described above, the Board finds that the Veteran's June 20, 1963 motor vehicle accident was due to willful misconduct and, therefore, was not in line of duty and service connection cannot be based on any injury that resulted from that accident. The Veteran himself asserts that his claimed disability are due to the motor vehicle accident. Moreover, there is no indication of any other injury or symptoms related to the back prior to the motor vehicle accident besides "pain" that was attributed to a kidney and urinary issues. Accordingly, there is no indication that the Veteran's claimed disability may be related to an eligible incident or injury during military service, and the duty to provide a VA examination is not triggered. See id. The Board also 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 connection with the current appeal, the evidence of record includes the Veteran's service personnel records, service treatment records, military police traffic accident investigation reports, statements in support of the claim by the Veteran and his representative, VA treatment records, and private medical records. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Board notes that the Veteran indicated in a statement in February 2008 that he had an MRI performed in Florida with a doctor who has since retired. The Veteran stated the MRI showed "broken" vertebrae in his back. The Veteran also indicated that he received treatment at William Beaumont General Hospital following the motor vehicle accident. While these records do not appear to have been obtained, the presence of a current disability and the occurrence of the motor vehicle accident are not at issue in this case. Therefore, even if VA were to obtain the records, they would only provide additional information related to an event that the Board has already conceded occurred but found ineligible for service connection purposes. The Veteran has also submitted a fully favorable decision from the Social Security Administration (SSA). Unfortunately, the medical records underlying the SSA's determination have not been obtained. Normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). However, in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records, rejecting the appellant's argument that SSA records are always relevant and VA always is required to obtain them. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In this case, there is no reasonable possibility that treatment records used to support the Veteran's 2005 SSA claim would shed light on an event which occurred in 1963; and the issue of medical nexus between the Veteran's motor vehicle accident in service and his current back disability is not in question. Therefore, a remand is not necessary to seek any treatment records. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs