Citation Nr: 18152065 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-38 212A DATE: November 20, 2018 ORDER Service connection for traumatic brain injury is granted. FINDINGS OF FACT 1. The Veteran’s traumatic brain injury in service was not the result of willful misconduct. 2. Medical evidence indicates the Veteran has current residuals of the traumatic brain injury in service. CONCLUSION OF LAW The criteria for service connection for traumatic brain injury have been met. 38 U.S.C. §§ 105, 1131 (2012); 38 C.F.R. §§ 3.102, 3.301, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1982 to January 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. 1. Service connection for Traumatic Brain Injury Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). However, VA cannot pay compensation for a disability that is the result of the claimant’s own willful misconduct in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.301. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). For the Board to find that there was willful misconduct, it must identify conduct; the identified conduct must be misconduct; and the identified misconduct must be willful. Martin v. McDonald, 761 F.3d 1366, 1369 (Fed. Cir. 2014) [emphasis added]. 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. The Veteran seeks service connection for traumatic brain injury (TBI) that occurred while in service. Specifically, he maintains that he was in an accident which resulted in a head trauma. He testified that, at the time of the accident, he did not have a driver’s license, that he did not drive anywhere, and that he was walking before the accident. See hearing transcript. The RO determined that the Veteran’s in-service motorcycle accident was the result of willful misconduct. Service Treatment Records (STRs) indicate the Veteran sustained a head trauma due to a motorbike accident in February 1984. However, the exact circumstances of the Veteran’s accident remain unclear as there were no witnesses and he has no memory of the accident itself. The STRs are likewise unclear as to the nature of the accident. They reveal the Japanese police found the Veteran following a “motorcycle ‘accident’”. See Feb. 29, 1984 STR. The STRs also indicate that the Veteran had an ethanol alcohol (ETOH) reading of 77.8 percent. An August 2012 VA report of contact with a New York State Trooper indicates that the ETOH percentage readings on a breathalyzer is 0.01 of a blood alcohol content (bac) level. So an example of an ETOH reading of 70% equals a blood alcohol level of 0.07 value. While the report of contact indicated that the Veteran’s reading of 77.8% equates to a 0.08 blood alcohol level, the Board notes that such results from a rounding up of the actual percentage. When specifically applied, 77.8% equates to a 0.0778 blood alcohol level, which is less than the 0.08 percent blood alcohol level that is currently considered to be driving under the influence. The Board does not find the Veteran’s assertion that he was walking at the time he suffered a TBI to be credible, in light of the contemporaneous service records noting the injury occurred from a motorbike, motorcycle, or bicycle accident. However, as the Veteran’s blood alcohol content was actually less than what is commonly accepted as legally intoxicated, and the circumstances of the accident are not clear, the Board will resolve all doubt in the Veteran’s favor and find that the head injury sustained at the time of the accident was not the result of willful misconduct. Turning to the underlying merits of the claim, the Board notes that the evidence clearly shows the Veteran suffered a significant head injury in the accident in February 1984. In the May 2012 VA examination, the examiner noted that the Veteran had current residuals from the in-service TBI. A VA neurological consultation in December 2010 noted the Veteran’s cognitive deficits are more likely than not related to the motor vehicle accident, but other symptomatology may not be. Upon review of the evidence, the Board finds the in-service TBI is not a result of the Veteran’s willful misconduct, and that he currently suffers from residuals of the in-service TBI. Accordingly, service connection for a TBI is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gaby N. Wilson, Law Clerk