Citation Nr: 18159995 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-19 314A DATE: December 20, 2018 ORDER Entitlement to service connection for cause of death in the line of duty is denied. FINDING OF FACT The Veteran’s death was not incurred while in the line of duty and was due to willful misconduct. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death in the line of duty have not been met. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1, 3.301. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2003 to his death in September 2011. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2014 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s father asserts that the Veteran’s death was incurred in the line of duty. 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 C.F.R. § 3.1(m); 38 C.F.R. § 3.301(a). Disability pension is not payable for any condition due to the veteran’s own willful misconduct. 38 C.F.R. § 3.301(b). 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 the purpose of this paragraph, 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). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). The simple drinking of alcoholic beverages 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). The Veteran was involved in a motorcycle accident in September 2011 while on active duty, where he crashed his motorcycle into another vehicle. He was transported to the hospital where he was found to have suffered a traumatic brain injury that left him brain dead, and which he did not survive. During medical treatment, the Veteran’s blood alcohol content (BAC) was tested and found to be .250%. The legal BAC in California at the time of this accident was .08%. Upon further investigation, the Veteran was estimated to be traveling at 45-55 miles per hour in a 25 miles per hour residential zone when he hit the other vehicle. The Department of the Army underwent a full investigation to determine if the Veteran died in the line of duty. Their conclusion was that he did not die in the line of duty but that his death was the result of his willful misconduct of drinking and driving. The investigator determined that alcohol was the primary factor of the accident and death of the Veteran. They determined that had a mentally sound person who was not under the influence been driving, the person would likely not have been driving so fast and would have had enough reaction time to stop before hitting the other vehicle. The Board finds that the Veteran’s death was not incurred in the line of duty. The Veteran’s BAC was more than three times the legal limit when he was involved in a life ending accident. The amount of alcohol that the Veteran consumed was sufficient to impair his judgment and reaction time, causing him to crash his motorcycle and sustain a traumatic brain injury that left him brain dead. In other words, the excessive use of alcohol on this occasion was sufficient to cause his death, which means the accident was not incurred in the line of duty. 38 C.F.R. § 3.301(d). Moreover, the Veteran’s alcohol consumption is considered willful misconduct as intoxication resulted proximately and immediately in death. 38 C.F.R. § 3.301(c)(2). (Continued on the next page) The Board regretfully finds that the Veteran’s death did not occur in the line of duty. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Megan Shuster, Law Clerk