Citation Nr: 20036717 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 11-17 240 DATE: May 28, 2020 ORDER Entitlement to service connection for a chin laceration (claimed as stitches in the chin) is denied. Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for migraine headaches is denied. FINDING OF FACT The probative evidence of record demonstrates that the claimed chin laceration, right shoulder condition and migraine headaches resulting from falling from a vehicle on September 16, 1976 were not incurred in the line of duty. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a chin laceration have not been met. 38 U.S.C. §§ 105, 1131, 5107 (2012); 38 C.F.R. § 3.1(m), (n) (2019). 2. The criteria to establish service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 105, 1131, 5107 (2012); 38 C.F.R. § 3.1(m), (n) (2019). 3. The criteria to establish service connection for migraine headaches have not been met. 38 U.S.C. § 105, 1131, 5107 (2012); 38 C.F.R. § 3.1(m), (n) (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1975 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was before the Board in March 2018, when it was remanded for additional development. Service Connection 1. Entitlement to service connection for a chin laceration 2. Entitlement to service connection for a right shoulder condition 3. Entitlement to service connection for migraine headaches The Veteran asserts that he incurred injuries to his chin, head and right shoulder in September 1976 when he fell off a moving vehicle and that those injuries caused his current chin scar, right shoulder pain and migraine headaches. He asserted the incident occurred after he turned himself in to authorities after an unauthorized absence from duty and while being transferred between county jails. He contends he did not try to escape from the vehicle but, rather, fell out of the back while being transported because the vehicle door was left open. He stated he was taken to a local hospital for treatment, where he did not undergo a computer tomography (CAT) scan of the head, but received 15 stitches under his chin and a sling for a dislocated shoulder, and that his conditions and residuals thereof have persisted since that time. See February 2013 Board transcript and June 2011 statement. He does not contend and the evidence does not suggest any other service-related cause for the claimed conditions. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established for disability resulting from an injury suffered in the line of duty, but no compensation shall be paid if the disability is the result of the veteran’s own willful misconduct. 38 U.S.C. §§ 1110, 1131; see also 38 U.S.C. § 105; 38 C.F.R. § 3.301. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty. 38 C.F.R. § 3.301(a). “In line of duty” means an injury or disease incurred or aggravated during a period of active service and not the result of the veteran’s own willful misconduct. 38 C.F.R. § 3.1(m). Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was: (1) avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty; (2) confined under a sentence of court-martial involving an unremitted dishonorable discharge; or (3) confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. Id. “Willful misconduct” means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). 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). As direct service connection is warranted only when a disability was incurred in the line of duty, the initial question before the Board is whether the claimed chin, shoulder and head injuries relating to the incident in September 1976 were incurred in the line of duty. After reviewing the record, the Board finds that the probative evidence weighs against finding that the claimed conditions were incurred in the line of duty. A September 16, 1976 Navy record shows that the Veteran was declared an unauthorized absentee beginning August 16, 1976, was declared a deserter on September 15, 1976, and surrendered on September 20, 1976. A September 20, 1976 administrative report of the incident states that the Veteran was a deserter from the USS Dixon since August 17, 1976, surrendered to civilian authorities on September 16, 1976, and attempted to escape from a moving Naval Reserve Center vehicle while being transported between county jails. The report notes that the Veteran was injured and received medical treatment at a local hospital, but was not hospitalized; it does not identify or describe the injuries. The report noted that a Line of Duty investigation was being conducted for the activity, and that, in view of the escape attempt, the Veteran was considered not reliable. A March 2011 VA report indicated that a Line of Duty determination from the Navy Reserve for the incident that occurred on September 1976 was not a matter of record. The Board notes that VA attempts to obtain the reports from official sources, to include in November 2016, were unsuccessful. The record reflects that VA was informed that medical treatment records from the local hospital where the Veteran contends he was treated on September 16, 1976 have been destroyed. Subsequent to a March 2018 Board remand, a November 2019 administrative decision determined that the Veteran’s injuries sustained while falling from a moving vehicle on September 16, 1976 are held to be not incurred in the line of duty, as it involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences, pursuant to 38 C.F.R. § 3.1(n)(1). The administrative decision noted that an October 15, 1976 Court Record explained that the incident happened while the Veteran was an unauthorized absentee and was on unauthorized absence from August 16, 1976 to September 20, 1976. After reviewing the record, the Board finds that the preponderance of evidence demonstrates that the injuries incurred in the September 16, 1976 incident were not incurred in the line of duty and, as such, direct service connection for the claimed chin laceration, right shoulder condition and migraine headaches is not warranted. At the time of the injuries in September 1976, the Veteran was an unauthorized absentee and declared deserter, who surrendered to authorities the day of the incident and was in custody at the time of the incident. As such, he was not present for duty and his absence materially interfered with the performance of military duty. Notably, the incident of the fall from the moving vehicle occurred after the Veteran had been declared a deserter on September 15, 1976, which was the day before the incident. Thus, even if the Veteran has current disabilities resulting from the fall on that date, the requirements as to line of duty are not met, and service connection on a direct basis is not warranted. See 38 C.F.R. § 3.1 (m). Although the Veteran asserted that he fell from the vehicle because the door had been left open, rather than an attempted escape, the Board finds his assertion is inconsistent with the evidence of record. The Board finds the contemporaneous evidence of record, to include the September 20, 1976 administrative report of the incident and its finding that the Veteran’s actions on September 16, 1976 involved willful misconduct, to be of greater probative value than the Veteran’s assertions made for purposes of his compensation claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Moreover, neither the Veteran nor his representative has provided any specific argument suggesting the incident occurred in the line of duty. In sum, the Board finds the preponderance of competent, credible and probative evidence is against the claim, and service connection for the claimed chin laceration, right shoulder condition and migraine headaches is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.