Citation Nr: 1751682 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-35 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for closed head injury, claimed as traumatic brain injury. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and C.M. ATTORNEY FOR THE BOARD Natasha N. Pendleton, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Navy from March 2007 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In February 2017, the Veteran testified at a video hearing before the undersigned Veterans Law Judge; the Veteran appearing before the Board in Denver, Colorado and the undersigned from Central Office in Washington, D.C. A transcript of the hearing is associated with the claims file. (Hearing Transcript). FINDINGS OF FACT 1. The Veteran's traumatic brain injury incurred as a result of alcohol intoxication, resulting in a blood alcohol content of 0.13 at the time of the motor vehicle accident. 2. The Veteran's traumatic brain injury was the result of willful misconduct and not within the line of duty. CONCLUSION OF LAW The criteria for service connection for traumatic brain injury has not been met. 38 U.S.C.§ 1310 (2014); C.F.R. §§ 3.1, 3.301, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he sustained a traumatic brain injury as a result of a motor vehicle accident in August 2011, during which his vehicle struck a tree, causing him to be in a coma for two months. He attributes the accident to sleep deprivation. He reports that prior to the accident, he was stationed at sea, working around the clock, five (5) hours shifts, followed by five (5) hour breaks for rest. He testified, however, that he did not recall the events surrounding the accident. His last memory of the time was approximately one week before the ship pulled into port and then thereafter when he became conscious at the Denver VA Medical Hospital. The Veteran's mother also testified at the hearing. She testified that she received a phone call that her son had been taken to the ICU. She flew out to oversee his recovery. Direct service connection may be granted only when a disability or cause of death was incurred 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 U.S.C.A. § 105; and 38 C.F.R. § 3.301(a). The phrase "willful misconduct," in its ordinary meaning, entails three requirements for the Board to find the phrase applicable. The Board must (1) identify conduct; (2) the identified conduct must be misconduct; and (3) the identified misconduct must be willful. Martin v. McDonald, 761 F.3d 1366, 1369 (Fed. Cir. 2014). Willful misconduct means an act involving conscious wrongdoing or known prohibited action and involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. at 1369-70 . Willful misconduct refers to an act of conscious wrongdoing, involving elements of intent and voluntariness. Id. at 1370 . Disability compensation or pension is not payable for any condition due to the Veteran's own willful misconduct. 38 C.F.R. § 3.301(b). "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 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. 38 C.F.R. § 3.301(c)(2). The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. Id. 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. Id. Any injury or disease incurred during active military, naval or air service shall not be deemed to have been incurred in the 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. Id. For the purpose of this regulation, alcohol abuse means the use of alcoholic beverages overtime, 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). Service treatment records show that the Veteran was injured in a motor vehicle accident on August 4, 2011. He was taken to emergency room where he received treatment for a severe head injury after colliding into a tree. (See October 2011 CAPRI (6) p. 34). Blood testing conducted upon admittance showed a blood alcohol level of 0.13, noted as ETOH Intoxication. (See December 2011- Military Personnel Record p. 20). Upon review of the evidence, the Board finds that the Veteran's injuries were the result of willful misconduct, not occurring within the line of duty. Here, his misconduct involved consuming alcoholic beverages and then driving an automobile. Such directly led to an automobile accident and his current TBI disability. The Veteran does not dispute his blood alcohol content levels, but argues that his accident should be not be deemed as willful misconduct because the U.S. Department of Navy determined his disability occurred within the line of duty. (See Military Personnel Record- Memorandum - Command Investigation into the Circumstances Surrounding the Motor Vehicle Accident with Injuries ICO ET2 p. 3-12). However, that determination is patently inconsistent with the facts and requirements of VA regulations. The Board notes that the Department of Navy implements a different legal standard to adjudicate their claims. The plain language of VA regulations is clear. The Veteran was legally intoxicated, operating a motor vehicle under a suspended license, when the injury resulted. Id. As stated by the service department finding, the Veteran employed poor judgement that night. Unfortunately, under these conditions, the Veteran actions raise the presumption of willful misconduct. While he contends today that sleep deprivation was a significant contributor to the accident, the official service department records make no mention of any sleep deprivation issues or concerns. The uncontroverted record indicates that the Veteran's alcohol use that night constituted more than simply drinking an alcoholic beverage. Rather, the Veteran's alcohol use resulted in a blood alcohol content level of 0.13; strongly suggests he was drinking alcoholic beverage to enjoy its intoxicating effects. While it is certainly possible that the Veteran may have felt some sleep deprivation that day, there are no references to sleep deprivation in the emergency room hospital notes, rehabilitation notes, or the police report. The Veteran's representative made no request to supplement the record and the treatment notes are complete. When asked at the hearing if there was any reference to sleep deprivation in the record, the representative responded that it was only their 'theory" of the case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(stating that VA may use silence in the service treatment records as evidence contradictory to a Veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred (Lance, J., concurring); see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011)(the absence of a notation in a record may only be considered if it is first shown both that the record id complete and also that the fact would have been recorded had it occurred). Upon weighing the Veteran's lay statements against that of the objective medical evidence of record, the Board finds the latter is entitled to more probative weight. Undoubtedly, his intoxication was the proximate and immediate cause of his disability. Thus, his actions constitute as willful misconduct. As the Board has determined the Veteran's alcohol use the night of the injury in service constitutes as abuse of alcohol, his traumatic brain injury resulting from said intoxication shall not be deemed to have been incurred in the line of duty. 38 C.F.R. §§ 3.1(m), 3.301(d). In reaching the above conclusions, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against finding that the Veteran's traumatic brain injury occurred within the line of duty. His abuse of alcohol constitutes willful misconduct. The doctrine is not applicable to the instant appeal because the evidence is not in a position of equipoise, equal positive and negative evidence, to otherwise grant the Veteran's claim. Unfortunately, the appeal is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R § 3.102. Duty to Notify and Assist The Board finds that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, VA's duties to notify and assist with respect to obtaining relevant records and an examination have been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Entitlement to service connection for closed head injury, claimed as traumatic brain injury is denied. ____________________________________________ MATTHEW TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs