Citation Nr: 1436070 Decision Date: 08/12/14 Archive Date: 08/20/14 DOCKET NO. 10-22 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether injuries incurred as a result of an in-service motor vehicle accident (MVA) on April 5, 1975 were the result of the Veteran's own willful misconduct. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), also claimed as due to military sexual trauma (MST). 3. Entitlement to service connection for hypertension, also claimed as secondary to PTSD. 4. Entitlement to service connection for gastroesophageal reflux disorder (GERD), also claimed as secondary to PTSD. 5. Entitlement to service connection for bilateral sensorineural hearing loss. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for burning in the ear canals. 8. Entitlement to service connection for a lumbar spine disorder. 9. Entitlement to service connection for a cervical spine disorder. 10. Entitlement to service connection for right knee arthritis, with torn ligaments. 11. Entitlement to service connection for left knee arthritis, with torn ligaments. 12. Entitlement to service connection for right wrist carpal tunnel syndrome (CTS). 13. Entitlement to service connection for left wrist carpal tunnel syndrome (CTS). 14. Entitlement to service connection for right hand arthritis. 15. Entitlement to service connection for peripheral neuropathy of the left upper extremity (LUE). 16. Entitlement to service connection for peripheral neuropathy of the right upper extremity (RUE). 17. Entitlement to service connection for temporomandibular joint dysfunction (TMJ). 18. Entitlement to service connection for sexual dysfunction, claimed as secondary to PTSD. 19. Entitlement to service connection for a right hip disorder. 20. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1974 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2009, April 2009 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The March 2009 administrative action by the RO found the Veteran's MVA on April 5, 1975 was due to his own willful misconduct and, consequently, the RO denied all of the Veteran's claims in an April 2009 rating decision. The Veteran protested indicating he also claimed injuries due to in-service sexual assault, and the RO, in response, denied the Veteran's PTSD claim due to MST in a June 2009 rating decision. The Veteran appealed all these decisions. On his May 2010 substantive appeal form, the Veteran indicated he wanted a hearing before the Board. In June 2010, the Veteran clarified indicating he first wanted a hearing before a decision review office (DRO) at the RO and then wanted a hearing before the Board. He did not withdraw his request for a Board hearing. The Veteran was afforded a hearing before a DRO in June 2010. At that hearing, however, the DRO limited the Veteran's testimony solely to the willful misconduct issue and did not permit the Veteran to testify with regard to the MST or any of the other issues specifically. In other words, he was not afforded a hearing on all the issues before the Board, and there is no indication he wanted to limit his testimony. Rather, it appears that he was actually prevented from providing testimony on issues properly before the Board. After the hearing, in July 2010, the Veteran specifically requested a second hearing to afford him the opportunity to provide testimony of the MST. In August 2010, on the other hand, the Veteran submitted a statement requesting the VA to "process my appeal immediately in Washington DC." This case was previously before the Board in September 2011, at which point the Board remanded the case so that the Veteran could clarify his hearing preferences. On remand, the Veteran participated in an informal conference in July 2013 and clarified that he wanted a DRO hearing and did not want a Travel Board hearing. The Veteran was scheduled for a DRO hearing in January 2014, but cancelled the hearing indicating in a January 2014 statement that he first wanted the RO to obtain information from one of his doctors, Dr. B., because he felt that she was withholding evidence. He also submitted a statement that he wanted the RO to obtain more information from his Captain in the military who provided a statement concerning the car accident in service, in terms of whether the Veteran was AWOL at the time of the accident. The RO deemed the Veteran's statements as his desire to cancel his hearing without good cause, noting that the Captain's statements were already of record, that VA could not demand information from an individual regarding facts and circumstances of his military service, that all military-related medical reports were already of record, and that the Veteran had not provided a complete medical release form for obtaining records from his psychiatrist. Thus, the RO moved forward in the adjudication process to advance his appeal. The case is now returned for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As discussed in the previous Board remand, the Veteran claims entitlement to service connection and TDIU due to injuries and events that transpired on active duty. Many of his claims are primarily based on a serious April 5, 1975 motor vehicle accident (MVA) where the collision claimed the life of an 18 year old young woman. The Veteran claims as a result of the MVA, he suffers from PTSD and many musculoskeletal problems. He further claims hypertension, sexual dysfunction and GERD resulted as manifestations of his PTSD. Aside from the MVA, the Veteran further claims after the April 1975 MVA, he was harassed, bullied and ultimately sexually assaulted by fellow servicemen in May 1975 being called a "girl killer." He claims as a result of this MST, he suffered injuries, to include PTSD, bilateral knee injuries, an injury to his back and other musculoskeletal injuries. While he already had injuries, he claims the MST further aggravated his conditions where he could hardly walk thereafter. Aside from the MVA and the MST, the Veteran further claims he has hearing loss, tinnitus, burning in his ear canals and various musculoskeletal problems (most significantly his back) as a result of the duties of his MOS and physical training in general while on active duty. As indicated in the introduction, the RO issued an administrative decision in March 2009 finding the Veteran's MVA was due to his own willful misconduct and, thereafter, denied all his claims in an April 2009 rating decision primarily due to the administrative decision. In June 2009, the RO also specifically denied PTSD as due to MST. The Veteran perfected an appeal as to all issues. While the RO determined in a March 2009 administrative decision that the Veteran's MVA was a result of his willful misconduct, the record is not entirely clear that the Veteran's actions met the definition of willful misconduct as defined by VA law. Direct service connection is only warranted for diseases or injuries incurred in or aggravated in the 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 or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The simple drinking of alcoholic beverage is not of itself willful misconduct. 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). Under 38 C.F.R. § 3.1(m), a service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was: (1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty. (2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge. (3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. 38 C.F.R. § 3.1(m). Willful misconduct means an act involving conscious wrongdoing or known prohibited action...(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). According to the record, the Veteran was reportedly driving at approximately 2am on April 5, 1975, and came to an intersection with a blinking red light. He mistook the blinking red light as turning green and proceeded through the intersection hitting the other vehicle, which had a blinking yellow light. Police records at the time of the accident note that the Veteran and two other individuals were at a bar from approximately 9pm to 9:30pm to 12am to 12:30am and consumed approximately 3-4 pitchers of beers. Witnesses offered conflicting information concerning whether the Veteran seemed intoxicated prior to the time of the car accident. The police officer at the scene of the crash did not indicate that he suspected that the Veteran was intoxicated, and actually let the Veteran leave with a traffic citation for running a blinking red light, before realizing the extent of the injuries to the occupants of the other vehicle. After it was discovered that one of the occupants of the other vehicle had died, the citation was voided and the Veteran was charged with aggravated assault with a motor vehicle. Subsequently the charge was changed to criminal negligent homicide. However, there is no further record of the court proceedings. It is not clear what the final judgment was in the case. The Veteran's personnel records show that he had numerous article 15s prior to the accident for being AWOL. However, it does not appear that he was AWOL on the night of the accident, rather he was on restriction to the limits of Fort Bliss. He was found in violation of Article 134, para 175 on April 8, 1975 for breaking said restriction on April 4, 1975. He was given an undesirable discharge for his frequent AWOL violations and his poor attitude in May 1975. His discharge was later upgraded to a General Discharge under honorable conditions in 1978, on the basis that his disciplinary problems all involved relatively minor offenses, prior to his development of personal problems he had achieved the grade of E-3 through accelerated promotion and his outstanding work in AIT, and there were no acts of indiscipline or counseling prior to his development of personal problems, which resulted in his wife leaving the area. The record does not show that a line of duty inquiry was ever made concerning the accident. This must be clarified on remand. Regarding the disabilities that are not contended as being directly related to the MVA, examinations are warranted to resolve the claims. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any line of duty inquiries conducted by the service department concerning the Veteran's MVA in April 1975. If efforts to obtain these records are unsuccessful notify the Veteran and indicate what further steps VA will make concerning the claim. 2. Make arrangements to obtain any public documents concerning charges filed against the Veteran in June 1975 for criminal negligent homicide as a result of the April 1975 MVA. If efforts to obtain these records are unsuccessful notify the Veteran and indicate what further steps VA will make concerning the claim. 3. Ask the Veteran to identify and sign the proper release form for any additional treatment he has received for his disabilities on appeal, including records from his psychiatrist, Dr. Brewer. 4. Thereafter, schedule the Veteran for a VA orthopedic examination. The claims file must be made available to, and reviewed by, the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disabilities of the Veteran's jawbone, neck, arms, wrists, hands, hips, knees, or back, had their clinical onset during active service or within one year of service separation, or are related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge the Veteran's complaints of back pain documented in his service treatment records and the Veteran's competent reports that he also injured his back during a sexual assault in service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Schedule the Veteran for a VA psychiatric examination. The claims file must be made available to, and reviewed by, the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any mental health disability including PTSD had its clinical onset during active service, or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge the following: (a) The Veteran's complaints of depression, tension, trouble sleeping, and nervousness documented in his service treatment records; (b) the Veteran's competent reports that he was sexually assaulted in service for retaliation for being involved in a MVA which killed a teenaged girl; (c) the March 1975 clinical abstract documenting the Veteran's multiple visits to the Mental Hygiene Clinic for three months with an impression of chronic, severe, passive aggressive personality disorder; and (d) the Veteran's assertion that his numerous disciplinary problems in the military were a result of mental health problems that the Army would not help him with. If possible, please differentiate between any mental health problems that are attributed to the MVA and other events in service such as his reported rape and/ or personal problems prior to the MVA. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. Schedule the Veteran for a VA audiology examination. The claims file must be made available to, and reviewed by, the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any present hearing loss, tinnitus, and/ or disability causing burning in the ear canals had its clinical onset during active service, or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge any competent reports of exposure to acoustic trauma in service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 7. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, it should be returned to the examiner for corrective action. 8. Finally, readjudicate the claim on appeal with any additional development deemed necessary concerning the service connection claims for hypertension, GERD, and sexual dysfunction, secondary to PTSD, based on the medical opinion provided concerning the PTSD. If any of the benefits remains denied, issue the Veteran a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).