Citation Nr: 18145950 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-33 997 DATE: October 30, 2018 ORDER Service connection for right ankle degenerative joint disease, status post right ankle fusion (right ankle disability), is denied. FINDING OF FACT The Veteran sustained an in-service right ankle injury; the in-service right ankle injury was not incurred in the line of duty and was the result of the Veteran’s willful misconduct. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.1 (m)-(n), 3.301, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from November 1980 to February 1983. Service Connection for a Right Ankle Disability The Veteran seeks service connection for a right ankle disability that is the result of a right ankle fracture sustained from a fall during active service in 1982. See December 2014 Statement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. 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. §§ 105, 1131. 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). However, VA regulations do not dictate that a service department finding that a veteran’s injury did not occur in the line of duty or that a Veteran’s actions constitute willful misconduct is binding on VA. In such cases, VA must independently weigh the relevant facts to determine whether, for VA purposes, the injury occurred in the line of duty or the actions constitute willful misconduct. Initially, the Board finds that the Veteran is currently diagnosed with right ankle arthritis, status post right ankle fusion. See November 2013 private treatment record. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran’s willful misconduct was the proximate cause of a right ankle injury during service. Service treatment records and military personnel records show that in August 1982 the Veteran became intoxicated during the course of the evening and assaulted and robbed a pizza deliveryman. The security police were called and attempted to apprehend the Veteran as he fled from the officers. During the pursuit, the Veteran jumped out of a second floor window and fractured both ankles. In a February 1983 Summary of Investigating Officer, the investigating officer stated that the Veteran was intoxicated on the night of the incident, but was able to comprehend that he had forcefully taken a pizza from the deliveryman and that he understood the fact that he was unlawfully resisting arrest by a police officer. An October 1982 Formal Line of Duty Determination found the ankle injuries were the result of the Veteran’s own willful misconduct. A November 1982 special court martial order reflects the Veteran was found guilty on one specification of assault, one specification of robbery, and one specification of resisting lawful apprehension. In response to the Veteran’s claim, the Regional Office (RO) in Milwaukee, Wisconsin, issued an administrative decision in August 2015 regarding the Veteran’s “line of duty” status at the time of the August 1982 incident. Based on review of the military personnel file, service treatment records, the Veteran’s December 2014 Statement, and the claims file, the RO concluded the Veteran’s right ankle injury was the result of own willful misconduct and was not sustained in the line of duty. In support of his claim, the Veteran asserts that the August 1982 incident occurred while he was intoxicated to the point of being incapable of a conscious decision; the Veteran argues that he was over-served alcohol that evening, which resulted in his severe intoxication. See July 2016 VA Form 9. After a thorough review of military personnel records, including Line of Duty and investigative reports, the Board finds that the Veteran’s willful misconduct was the proximate cause of the in-service right ankle injury. The investigation conducted by the Air Force and subsequent review of the investigation appear to be thorough and well reasoned. The Board finds that assault, robbery, and evading arrest while under the influence of alcohol constitutes knowing and reckless behavior as contemplated by 38 C.F.R. § 3.1(n). Contrary to the Veteran’s assertion that he was incapable of a conscious decision, other evidence shows that during the August 1982 incident shows that he was capable of a conscious decision. In a contemporaneous report by an investigating officer who was not intoxicated stated that the Veteran was able to comprehend that he had forcefully taken a pizza from the deliveryman and that he understood the fact that he was unlawfully resisting arrest by a police officer. Such alleged incapacity to make a decision, if true, would have been a defense to a November 1982 special court martial order conviction; such a defense was either not raised or not believed at the court martial. For these reasons, the Veteran’s statement that he was incapable of a conscious decision at the time of the August 1982 incident are inconsistent with, and outweighed by, other, more contemporaneous and more probative evidence of record. Based on the foregoing, the Board finds that the weight of the evidence demonstrates the Veteran’s right ankle injury sustained during service in August 1982 was due to his own willful misconduct and was not sustained in the line of duty, such that the claim for service connection for a right ankle disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel