Citation Nr: 21001901 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-36 232 DATE: January 12, 2021 ORDER Service connection for the residuals of tongue surgery is denied. VETERAN’S CONTENTIONS The Veteran asserts that he is entitled to service connection for the residuals of a tongue surgery he underwent in service, after he injured his tongue in a motor vehicle accident. He contends that the May 1987 motor vehicle accident was not the result of his own willful misconduct and that his injuries therefore should be held to have been incurred in the line of duty. Specifically, the Veteran contends that he was swerving to avoid another vehicle, and that therefore, the accident should not be considered to have been the result of intoxication. FINDINGS OF FACT 1. In May 1987, the Veteran was involved in a motor vehicle accident that was determined to be the result of intoxication. As a result of this accident, the Veteran sustained facial trauma including a tongue laceration. 2. The tongue laceration the Veteran sustained, and the current residuals thereof, are the result of his own willful misconduct. As such, the current residuals cannot be deemed to have been incurred in the line of duty. CONCLUSION OF LAW The criteria for service connection for the residuals of tongue surgery are not met. 38U.S.C.§§105, 1110, 5107(b); 38C.F.R.§§3.1 (m) and (n), 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1982 to December 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in February 2019 and a transcript of the hearing has been associated with the claims file. The Board issued a decision in May 2019 denying the Veteran's claim for service connection for the residuals of tongue surgery. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Partial Remand (JMPR) in June 2020. Thereafter, in June 2020, the Court issued an Order granting the JMPR and remanding the matter for action consistent with the terms of the JMPR. Entitlement to service connection for residuals of tongue surgery Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection a claimant must show (1) competent and credible evidence of a current disability; (2) medical or lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of linkage between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). With regard to the second element, veterans are entitled to a presumption that injuries incurred during active service were "incurred in the line of duty" and not the result of the veteran's willful misconduct. 38 U.S.C. § 105(a) ("An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in [the] line of duty and not the result of the veteran's own misconduct ..."); Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("By its plain terms, section 105(a) creates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by the veteran's misconduct."). 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. Holton, 557 F.3d at 1367 (Fed. Cir. 2009); Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005) (supporting preponderance of the evidence as the proper evidentiary standard to rebut the line-of-duty presumption); Myore v. Brown, 9 Vet. App. 498, 503 (1996) (remanding the Board's denial of benefits based on willful misconduct finding where "[t]he Board did not support its denial in this case by a finding that willful misconduct, under 38 U.S.C. § 105(a) and 38 C.F.R. § 3.1(n)(1), was shown by a preponderance of the evidence"). The burden rests on the government to show that an act constitutes willful misconduct, defined as "an act involving conscious wrongdoing or known prohibited action" that "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); see Holton, 557 F.3d at 1367 ("[I]f the veteran establishes that he was injured or contracted a disease during active service and the government does not show that the injury or disease resulted from willful misconduct, the veteran has satisfied the second of the three elements [for service connection] ..."). Alcohol consumption or alcohol abuse alone does not necessarily constitute willful misconduct. 38 C.F.R. § 3.301(c)(2) ("The simple drinking of alcoholic beverage is not of itself willful misconduct."); see Martin v. McDonald, 761 F.3d 1366, 1371 (Fed. Cir. 2014) ("Congress has taken action indicating that alcohol abuse and willful misconduct ... are not coextensive."). Further, "[w]illful misconduct will not be determinative unless it is the proximate cause of injury, disease or death." 38 C.F.R. § 3.1(n)(3); see 38 C.F.R. § 3.301(c)(2) ("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."). The veteran does not bear the burden of proving that his injury was not the result of willful misconduct; rather, VA bears the burden of proving that it was. See Holton, 557 F.3d at 1367. VA must set forth evidence that shows by a preponderance that the in-service injury was proximately caused by an act of willful misconduct by the veteran. Thomas, 423 F.3d at 1283; Myore, 9 Vet. App. at 503. "Willful misconduct in alcohol consumption cases is the willingness to achieve a drunken state, and, while in this condition, to undertake tasks for which the person is unqualified, physically and mentally, because of alcohol." Id. A service department finding that the injury in question occurred in the line of duty is binding on VA unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. 38 C.F.R. § 3.1(m). A service department finding that an injury was not due to misconduct is also binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. 38 C.F.R. § 3.1(n). Here, the Veteran's service treatment records (STRs) include a May 21, 1987 operative report which documents that the Veteran sustained facial trauma as a result of a motor vehicle accident. The diagnosis was tongue laceration all the way through, requiring stitches. The physician noted the motor vehicle accident and intoxication. Nevertheless, STRs show that the injuries were considered to have been incurred during the line of duty, and not to have been due to willful misconduct. The Veteran's STRs do not otherwise document any complaints, treatment for, or diagnoses of conditions related to the tongue apart from that which was incurred as a result of the motor vehicle accident. It is not in dispute that the Veteran was on active duty at the time of this accident. Rather, the central issue before the Board in this case is whether the Veteran's disability was incurred in the line of duty or was due to his willful misconduct. In this regard, the Veteran testified during the February 2019 Board hearing that at the time of the motor vehicle accident he was stationed aboard the Naval Air Station Pensacola. On the night of the motor vehicle accident, he and a friend were drinking and watching television when they became hungry and decided to drive off base to get something to eat. While driving, he swerved to avoid an oncoming vehicle and hit a telephone pole. He in essence asserts that because he was swerving to avoid another vehicle, the accident should not have been considered to have been the result of intoxication. As such, the residuals of the injuries he sustained should be considered to have been incurred in the line of duty. After review of the evidence, the Board finds that the Veteran's intoxication was the proximate cause of the motor vehicle accident which caused his injury. It thus follows that the Veteran's residuals of tongue surgery are the result of his own willful misconduct and, therefore, not incurred in the line of duty. Proximate cause is "that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Forshey v. West, 12 Vet. App. 71, 73-74 (1998) (quoting Black's Law Dictionary 1225 (6th ed.1990)), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002); Thomas v. Nicholson, 21 Vet. App. 418 (2006) (discussing the Board's treatment of proximate causation), aff'd, 227 F. App'x 895 (Fed. Cir. 2007). Here, the Veteran was willing to achieve a drunken state as indicated by his February 2019 testimony and while in this condition, to undertake driving a motor vehicle, a task for which he was unqualified, physically and mentally. This action proximately and immediately caused his motor vehicle accident and resulting injury, as indicated by the operation report which documented the motor vehicle accident and intoxication. The Board considered the Veteran’s contention that because he was swerving to avoid another vehicle, the accident should not have been considered to have been the result of intoxication. However, the Board notes that the evidence of record is void of any indication that the driver of another vehicle was at fault. A May 1987 history and physical examination report specifically indicated that the accident was a single car motor vehicle accident. The Board finds the May 1987 history and physical examination report of greater probative value than the history reported by the Veteran as it was produced immediately following the motor vehicle accident. Curry v. Brown, 7 Vet. App. 59, 68 (1994). (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board acknowledges the narrative summary from the Naval Hospital in which the physician indicated that the May 21, 1987 motor vehicle accident was in the line of duty and not due to the Veteran's own misconduct. However, as previously stated, a line of duty 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. The narrative study did not address relevant evidence related to the Veteran’s intoxication in reaching its conclusion that the motor vehicle accident was in the line of duty and not due to the Veteran's own misconduct. Therefore, the Board finds that the narrative summary determination is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs and patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. The Board also acknowledges that the Veteran testified during the February 2019 Board hearing that he was working stressful shifts sometimes twice a day with only eight hours sleep in between. It is unclear whether the Veteran is suggesting that he was sleep deprived at the time of the motor vehicle accident. However, the Board notes that there were no references to sleep deprivation in the operation report or any other treatment records related to the motor vehicle accident. The legal authority governing preclusion of service connection for disability due to willful misconduct is clear and specific, and the Board is bound by such authority. 38 C.F.R. § 3.301(c)(2). Given such authority, on these facts, there is no legal basis for an award of service connection for residuals of tongue surgery, and the claim for such must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 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). The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.