Citation Nr: 20028822 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-44 717 DATE: April 24, 2020 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. The most probative medical evidence of record does not establish that the Veteran has right ear hearing loss for VA purposes. 2. The Veteran was involved in a motor vehicle accident during service. As a result of this accident, he sustained injuries. 3. The motor vehicle accident was due to the Veteran’s deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.385. 2. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 4.2. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 through July 1984. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss is related to service. Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In October 2012, post-service treatment notes document the Veteran’s complaint of difficulty hearing. Upon examination, he had a speech recognition score of 100 percent in his right ear. In July 2018, the Veteran was afforded a VA examination for hearing loss. His audiological examination was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 20 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. Subsequent treatment notes do not document audiological testing representing greater hearing impairment in the Veteran’s right ear. The Veteran’s hearing loss in his right ear fails to meet the definition of a hearing loss disability for VA purposes. Because the record does not demonstrate that the Veteran has right ear hearing loss within VA standards, there is no valid claim for entitlement to service connection for right ear hearing loss. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Veteran is competent to report his hearing difficulty and there is no question he had acoustic trauma in service. However, his statements are not competent to establish right ear hearing loss for VA benefit purposes, which by regulation, must be shown by official audiometry. The preponderance of the evidence is against the claim for service connection for right ear hearing loss. It must be denied. Entitlement to service connection for bilateral knee disability is denied. The Veteran contends that his bilateral knee disability is related to service. Specifically, he alleges that his bilateral knee began as a result of a motor vehicle accident in-service and has continued ever since. Service connection may be granted for a disability or cause of death incurred or aggravated in the line of duty if it is not the result of the service member’s own willful misconduct, or for claims filed after October 31, 1990, by the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a); see 38 U.S.C. §§ 105(a), 1110, 1131; 38 C.F.R. § 3.1(m). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Mere technical violations of police regulations or ordinances will not per se constitute willful misconduct, and willful misconduct will not be determinative unless it is the proximate cause of injury. 38 C.F.R. § 3.1(n)(3). 38 U.S.C. § 105(a) establishes a presumption in favor of a finding of line of duty. If it is determined that an exception does apply (such as willful misconduct), and the claim is denied solely on the basis of such exception, it must be established that the denial of the claim was justified by a preponderance of the evidence. Daniel v. Brown, 9 Vet. App. 348, 351 (1996); Smith v. Derwinski, 2 Vet. App. 241, 244 (1992). The Veteran’s military personnel records document a traffic accident in March 1984. At the scene of the accident, the Veteran was cited for driving without a license, failure to yield, and drunken driving. An investigative report noted the Veteran’s admission to drinking alcohol immediately before operating the vehicle involved in the accident. The Veteran was transported by ambulance to St. Marienwoerth hospital for injuries sustained during the accident. The Board finds that the Veteran’s actions leading to his accident constituted a wanton and reckless disregard of the probable consequences of his actions. Therefore, the Board finds the injuries the Veteran incurred from this event were due to his willful misconduct, and did not occur in the line of duty. A review of the record shows the Veteran has a history of problems with alcohol and drug abuse. His military personnel record is replete with several incidents involving alcohol and drugs, including possession of illegal paraphernalia, alleged intent to sell, and drunken driving. Notably, the Veteran was recommended for discharge for these behaviors and his failure to complete rehabilatation. Considering the aforementioned, the most probative evidence shows that the Veteran has had continued problems with alcohol and drugs during his service. His misconduct leading up to the accident, which resulting in the sustained injuries documented in-service. Evening assuming that his current bilateral knee disabilty is related to this in-service accident, compensation would not be allowable by law due to the Veteran’s willful misconduct that caused the accident. As such, the theory of entitlement for service connection for his bilateral knee disability is not available to the Veteran. 38 C.F.R. § 3.301(d). The claim must be denied. . H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.