Citation Nr: 20039989 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 14-39 204 DATE: June 11, 2020 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. To the extent that a lumbar spine disability is related to the Veteran’s active duty service, a preponderance of the evidence establishes that it was caused by or resulted from the Veteran’s own willful misconduct. 2. To the extent that any residuals of a head injury are related to the Veteran’s active duty service, a preponderance of the evidence establishes that they were caused by or resulted from the Veteran’s own willful misconduct. 3. To the extent that PTSD is related to the Veteran’s active duty service, a preponderance of the evidence establishes that it was caused by or resulted from the Veteran’s own willful misconduct. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 105, 1110, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.303. 2. The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 105, 1110, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.303. 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 105, 1110, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1959 to July 1962. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a video conference hearing. This case was previously remanded by the Board in July 2018. As the actions specified in the remand have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Direct service connection may be granted only when a disability 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 U.S.C. §§ 105(a), 1110; 38 C.F.R. §§ 3.1(m), 3.301(a). A veteran is entitled to a presumption that an injury incurred during active service was “incurred in the line of duty” and was not the result of the veteran’s misconduct. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (citing 38 U.S.C. § 105(a)). This presumption may be rebutted if the government demonstrates by a preponderance of the evidence that the in-service injury was caused by or resulted from willful misconduct or by abuse of alcohol or drugs. See Holton, 557 F.3d at 1367; see also Daniels v. Brown, 9 Vet. App. 348, 351 (1996). “In line of duty” means an injury or disease incurred or aggravated during a period of active military service unless such injury or disease was the result of the veteran’s own willful misconduct. 38 C.F.R. § 3.1(m). “Willful misconduct” means an act involving conscious wrongdoing or known prohibited action. 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). 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)(2), (3). A service department finding that injury or disease occurred in line of duty and/or was not due to misconduct will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m), (n). The Board’s determination that a disability is the result of willful misconduct is a finding of fact that must be supported by a preponderance of the evidence. Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005); Daniels, 9 Vet. App. at 351. Additionally, the element of knowledge of or wanton or reckless disregard of the probable consequences must be specifically addressed. Myore v. Brown, 9 Vet. App. 498, 503-04 (1996). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for (i) a lumbar spine disability; (ii) residuals of a head injury; and (iii) PTSD The Veteran seeks service connection for a lumbar spine disability, residuals of a head injury, and PTSD, which he asserts were caused by a singular incident that occurred during military service. Because the Veteran’s theory of entitlement to service connection is identical for all three claimed disabilities, the Board will discuss these issues together. The Veteran contends that he was involved in a physical altercation in September 1961 while attending a wine festival in Bad Durkheim, Germany, where he was stationed at the time. The Veteran maintains that he was provoked by a German civilian and fought back only to defend himself. He admits that while German police were breaking up the fight, he accidently punched a police officer. Thereafter, the Veteran contends that he was taken into custody and severely beaten until unconscious by German police and American military police (MP). As a result of his injuries, the Veteran claims that he had to be hospitalized for a week. The Veteran directly attributes his claimed disabilities to the assault he endured at the hands of the police; he denies that his actions constituted willful misconduct. Service treatment records and personnel records indicate that, on September 17, 1961, the Veteran was involved in a physical fight in Bad Durkheim, Germany, which resulted in a head wound. A September 19 clinical record details that the Veteran was treated for a lacerated wound to his occipital scalp, which required two stitches. He was also noted to have been treated for “simple drunkenness.” According to a September 22, 1961 Military Police Report, six German police officers and one member of the military police (MP) were notified of a fight taking place at a wine festival in Bad Durkheim on September 17. The officers observed the Veteran, who was bleeding from the head, fighting with another person. When the officers tried to break up the fight, the Veteran punched one German police officer in the face, causing his nose to bleed, and kicked the MP in the groin. At one point, the Veteran had to be wrested to the ground and he hit his head on an overturned bench. The officers had to carry the Veteran out of the tent by his arms and legs as he continued to kick, bite, and punch those who restrained him. It was noted that at the time of his arrest, the Veteran was under the influence of alcohol and his behavior was noted to be “uncooperative” and “belligerent.” He was charged with assault, resisting apprehension, and drunk and disorderly conduct. Once at the police station, the Veteran continued to punch, kick, and wrestle the officers until they were able to get him into hand cuffs. During the scuffle, the Veteran was pushed by an officer and he hit his head on a door frame and fell to the ground. The German Red Cross first aid squad were called to attend to the Veteran’s bleeding head wound, however, according to the report, “the subject was still so violent,” they needed the police officers’ help to strap him into a stretcher. After a period of approximately 10 minutes, the Veteran calmed enough to be treated and he was given a sedative by a German doctor. Subsequently, MPs were notified to escort the Veteran back to a U.S. Army facility. The Board notes that the above account is corroborated by statements provided by the arresting German officers and MP. Thereafter, in the early morning hours of September 18, the Veteran was admitted to the U.S. Army Hospital in Heidelberg. According to a Statement of Medical Examination and Duty Status, a military physician examined the Veteran and determined that he was under the influence of alcohol. The physician remarked that the Veteran “does not remember” what happened. He received two sutures to close the laceration on the back of his head. On September 19, 1961, the Veteran provided the following statement to the investigating officer: “At about 1730, 17 September 1961, I along with five others went to a wine fest which was located in Bad Durkheim. After having about two or three glasses of wine, [I] went to the latrine. This is the last thing that I remember until waking in the hospital in Heidelberg. I cannot account for any of the happenings that took place between the time [I] went to the latrine and when I woke at the hospital.” A statement provided by a fellow service member who witnessed the fight acknowledges that the Veteran accidently punched a German police officer, but that when the Veteran was being taken away he was “under control,” and the only apparent physical harm was a laceration on his nose that may have been bleeding. Another service member who witnessed the fight stated that he “has no idea as to what provoked [the fight],” but that he witnessed the Veteran engaged in a “vicious fight” with three German nationals. The witness also stated that when the Veteran was carried from the wine tent by the police, he was “quite irrational from anger, [but] physically unharmed.” Yet another service member who witnessed the fight stated that he saw the German officers and MP carry the Veteran to the police station, where they took the Veteran into a back room and beat him with fists and night sticks. Although the witness did not directly observe the Veteran being beaten, he stated that “after about five minutes, one of the MPs came out [and] he had blood all over the front of his shirt.” One week following the incident, on September 25, a service treatment record notes that the Veteran “was hit by head last week and two sutures were put in occipital region. Suture removed, wound healed.” A September 29, 1961 Report of Investigation details that the Veteran became involved in a fight while attending a wine festival. American military and German police were called to stop the fight. In the ensuing scuffle, the Veteran’s actions, which were induced by consumption of wine, were such as to cause the police to use more than necessary force to restrain him. The listed medical diagnoses due to this incident are alcoholic intoxication, comatose, and skull laceration. It was noted that his injuries were sustained while “resisting arrest.” The investigating officer concluded that the Veteran’s actions constituted wanton disregard for his own personal safety, thus constituting gross negligence. As a result of the investigating officer’s findings, the Veteran’s injuries were determined to be due to the Veteran’s own misconduct and, therefore, had not occurred in line of duty. A December 1961 Line of Duty Status Memorandum communicates to the commanding officer the final determination that the Veteran’s injures were not in line of duty and were due to his own misconduct. In an April 2013 Administrative Decision, the RO determined that the injuries the Veteran sustained in September 1961 are considered to have been the result of willful misconduct and, therefore, were not incurred in the line of duty. The Veteran did not appeal that decision. At the February 2020 Board hearing, the Veteran testified that he received a summary court martial due to the September 1961 incident; he pled guilty and was punished with 30 days restriction and a $30 fine. He received an honorable discharge from the Army. In numerous statements to VA and at his Board hearing, the Veteran has acknowledged that he engaged in a physical fight with a German civilian, but that he was not the initial aggressor and was only defending himself. He has also stated that he was not intoxicated at the time of the incident. The Veteran admits that he accidentally punched a German police officer. However, the Veteran maintains that he was brutally beaten by the German police officers and MP who arrested him. He claims that he was taken to a police station, tied to a post with his hands cuffed behind his back, and brutally beaten with fists and nightsticks until he was unconscious. He has stated that he spent one week in the hospital recovering from his injuries. The Veteran denies that the fight and his ensuing injuries were due to his own willful misconduct. He asserts that his degenerative disc disease of the lumbar spine, residuals of a head injury (claimed as scars of the face and head), and PTSD are directly related to being beaten by the police. The Board notes that the Veteran has not raised any other theory of entitlement with respect to his claims for service connection for a lumbar spine disability, residuals of a head injury, and PTSD, nor has any other theory of entitlement been raised by the record. As such, the Board’s analysis of the claims for service connection will be limited to the theory advanced by the Veteran. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56. After a careful review of the record, the Board finds that a preponderance of the credible evidence establishes that the Veteran’s claimed disabilities were caused by or resulted from the Veteran’s own willful misconduct and, thus, were not incurred in the line of duty. In making this finding, the Board has accorded great probative weight in the contemporaneous records in this case, including the incident police report, witness statements, police statements, line of duty investigative report, medical records and the treating physician’s report, and the Veteran’s own statement to the investigator. These records are reliable and, therefore, highly probative because they were created contemporaneous in time to the incident in question, when the memories of witnesses and participants were fresh and when the Veteran’s state of intoxication and extent of his injuries could be directly observed by physicians and other objective observers. The Board notes that the service department investigative report and line of duty determination found that the Veteran’s injuries were not in the line of duty and were the result of his own willful misconduct. As such, 38 C.F.R. § 3.1 (m)-(n) does not apply in this case. However, the service department line of duty determination is highly probative as it was based on a contemporaneous investigation that took into account statements from witnesses who were present at the time of the incident (and assessed their credibility) and the medical records of the Veteran’s injury. It includes plausible explanations for its finding that the Veteran’s injuries were not in the line of duty and due to his own willful misconduct. In the aggregate, these records, as summarized above, establish a credible sequence of events. While attending a wine festival on September 17, 1961, the Veteran, who was intoxicated, became involved in a physical altercation with a German civilian. The Board acknowledges that the Veteran denies that he was the aggressor in the initial fight. However, whether or not the Veteran initiated the fight is an immaterial point of inquiry, as it is the Veteran’s actions that followed that involved intentional wrongdoing with wanton and reckless disregard for the consequences of such actions. In this regard, when the police arrived to break up the fight, the Veteran violently and combatively resisted arrest and assaulted several of the officers. At some point during the struggle, the Veteran suffered a wound to the back of his head and, possibly, a laceration to his nose. As a result of his actions, he was charged with assault, resisting apprehension, and drunk and disorderly conduct, to which he pled guilty and received punishment via a summary court martial. The Board finds that the Veteran’s actions arose to the level of willful misconduct. His actions – resisting apprehension, assaulting police officers, and drunk and disorderly conduct – are acts that a reasonable person knows to be prohibited and wrongful. His belligerent and uncooperative behavior against the officers and the medical staff who were trying to treat him at the police station may or may not have been exacerbated by his intoxicated state; nonetheless, his actions constituted intentional wrongdoing with wanton and reckless disregard for the probable consequences, including inflicting harm on himself and others. Next, the Board finds that the Veteran’s willful misconduct was the proximate cause of his head injury. The contemporaneous lay and medical evidence clearly show that the Veteran received a laceration to the back of his skull as a direct result of his willful and unlawful actions of assault, resisting arrest, and drunken and disorderly conduct. Likewise, to the extent that the Veteran claims his currently-diagnosed lumbar spine disability and PTSD are also related to this incident, it follows that these disabilities were also caused by his own willful misconduct. In making this determination, the Board would like to address the Veteran’s lay contentions with regard to why he believes his actions did not constitute willful misconduct. The Board acknowledges that the Veteran asserts that he was not intoxicated at the time of the fight and ensuing arrest, having only consumed “two or three” glasses of wine. The Board also acknowledges the Veteran’s contention that he did not resist arrest, but rather, only accidentally punched a police officer. Finally, the Board acknowledges that the Veteran maintains that, without provocation, the German police officers and American MP severely beat him until he was unconscious, resulting in a one-week stay in the hospital. The Board does not find the Veteran’s lay contentions to be credible because they are not supported by the contemporaneous evidence of record. First, there is ample evidence to support a finding that the Veteran was intoxicated at the time of the incident in question. The arresting officers’ statements and the arrest report all state unequivocally that the Veteran was intoxicated, belligerent, and strongly smelled of alcohol. The military physician who examined the Veteran at the Army hospital just hours after his arrest found the Veteran to be intoxicated and noted that the Veteran did not remember anything that had happened. Finally, in the Veteran’s own statement to the investigator on September 19, the Veteran stated that he could not remember anything that had happened that night, which certainly suggests that he was under the influence of intoxicants. With regard to the Veteran’s claim that he was severely beaten until unconscious by the police, the Board finds that the objective medical evidence contradicts this claim. According to service treatment records, just hours after his arrest, the Veteran was taken to the hospital where he received two sutures to the occipital region of the skull to close the laceration he received either from the initial fight or the ensuing scuffle with police. One week later, on September 25, the wound was noted to be healed and the sutures were removed. There is no indication from the service treatment records that the Veteran had any other injuries to his face or body that required medical attention or that he required hospitalization for any length of time due to any injuries he received on September 17. Upon weighing the Veteran’s lay statements against that of the objective medical and other contemporaneous evidence of record, for the reasons stated, the Board finds the latter is entitled to more probative weight. Finally, the Board notes that the Veteran has requested that he be afforded a VA medical examination in support of his claims. However, the determination that a disability is the result of willful misconduct is a finding of fact to be made by the adjudicator. See Thomas, 423 F.3d at 1283; Daniels, 9 Vet. App. at 351. A current VA examination would not assist the Board in making this determination, nor would it help the Veteran to substantiate his claims. Likewise, although the Board has reviewed the numerous buddy statements that have been submitted on the Veteran’s behalf and attest to how the Veteran’s disabilities have impacted his life, they are not considered competent evidence to establish whether those disabilities are related to service or the result of the Veteran’s own willful misconduct. In summary, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of the Veteran’s own willful misconduct or the result of his abuse of alcohol or drugs. 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. §§ 3.1(m), 3.301(a). To the extent that the Veteran claims that his currently-diagnosed disabilities of a lumbar spine disability, residuals of a head injury, and PTSD are related to his active duty service, a preponderance of the evidence establishes that the disabilities were caused by or resulted from the Veteran’s own willful misconduct. As such, these disabilities were not incurred in the line of duty and service connection is barred as a matter of law. See id; Sabonis v. Brown, 6 Vet. App. 426, 429-30. The benefit-of-the-doubt rule is not for application here and the Veteran’s appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.