Citation Nr: 21062582 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-25 321 DATE: October 8, 2021 ORDER Entitlement to service connection for a right ankle disability has been withdrawn. Entitlement to service connection for high blood pressure has been withdrawn. Entitlement to service connection for rib fractures is denied. Entitlement to service connection for a lung injury is denied. Entitlement to service connection for a facial scar is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. At the June 2019 hearing, the Veteran and his representative testified that he withdrew the appeal for entitlement to service connection for a right ankle disability. 2. At the June 2019 hearing, the Veteran and his representative testified that he withdrew the appeal for entitlement to service connection for high blood pressure. 3. The preponderance of the evidence indicates that the Veteran's rib fractures were the result of willful misconduct and was not incurred in the line of duty. 4. The preponderance of the evidence indicates that the Veteran's lung injury was the result of willful misconduct and was not incurred in the line of duty. 5. The preponderance of the evidence indicates that the Veteran's facial scar was the result of willful misconduct and was not incurred in the line of duty. 6. The preponderance of the evidence indicates that the Veteran's PTSD was the result of willful misconduct and was not incurred in the line of duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a right ankle disability by the Veteran and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to service connection for high blood pressure by the Veteran and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to service connection for rib fractures have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.301, 3.303 (2018). 4. The criteria for entitlement to service connection for a lung injury have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.301, 3.303 (2018). 5. The criteria for entitlement to service connection for a facial scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.301, 3.303 (2018). 6. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.301, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1978 to March 1986. The Veteran testified at a video conference hearing before the undersigned judge in June 2019. A transcript of the proceeding is of record. In September 2019, the Board denied the Veteran's claims for entitlement to service connection for rib fractures, a lung injury, a facial scar, and PTSD. The Board also withdrew his claims for entitlement to service connection for a right ankle disability and high blood pressure. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court granted a Joint Motion for Partial Remand, which vacated and remanded the Board's September 2019 decision. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110; 38 C.F.R. § § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f), that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to be entitled to service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Corroboration of the stressor is not required when a VA psychiatrist or psychologist diagnoses PTSD resulting from a fear of hostile military or terrorist activity when that fear is consistent with the circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3). Corroboration of the existence of a stressor is also not required in certain circumstances when the Veteran was diagnosed with PTSD in service, the Veteran engaged in combat with the enemy and the claimed stressor is related to that experience, or the Veteran was a prisoner of war and the claimed stressor is related to that experience. 38 C.F.R. § 3.304(f)(1), (2), (4). Corroboration of the existence of an in-service stressor is necessary in all other cases. Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for high blood pressure. An appellant, or his authorized representative, may withdraw an appeal or any issues therein, on the record at a hearing or in writing; such a withdrawal is effective when received. 38 C.F.R. § 20.204 (2018). At the June 2019 hearing, the Veteran and his representative indicated that it was his intent to withdraw the appeal for entitlement to service connection for a right ankle disability and high blood pressure. The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. The undersigned judge informed the Veteran that he can re-raise his theory at any time and that his withdrawal would affect the effective date if his service-connected claims were ever awarded, to which the Veteran said, "yes, sir." The correspondence is included in the Veteran's hearing transcript. Importantly, at no point during the hearing thereafter was the issue of service connection for a right ankle disability and service connection for high blood pressure discussed. Given these circumstances, and because the Veteran's withdrawal was done with the consent of his representative, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. Acree v. O'Rourke, 891 F.3d 1009, 1015 Fed. Cir. (Fed. Cir. 2018). There is no evidence of record to show that the Veteran did not have full understanding of the claim withdrawal consequences. The hearing transcript did not indicate that he expressed any doubts or misunderstandings about what would happen to the instant claims. Thus, there remain no allegations of errors of fact or law for appellate consideration on that stage of the appeal. There is nothing left for the Board to address. Accordingly, the Board does not have jurisdiction to review the instant claims and they have been effectively withdrawn. 3. Entitlement to service connection for rib fractures. 4. Entitlement to service connection for a lung injury. 5. Entitlement to service connection for a facial scar. 6. Entitlement to service connection for PTSD. The Veteran appeals the denial for entitlement to service connection for residuals from rib fractures, a lung disability, a facial scar, and PTSD. He asserts that he incurred these disabilities as a result of an event that occurred while he was on active duty service. Specifically, he indicates that in August 1983, he was involved in a motor vehicle accident while stationed in Germany. Other servicemembers in the vehicle were also injured, and another servicemember was killed. Service connection may not be granted for disabilities that are incurred as a result of or are aggravated by the Veteran's own willful misconduct. 38 C.F.R. § 3.301(c)(2). Willful misconduct is an act involving conscious, deliberate, or intentional wrongdoing with knowledge of or wanton and reckless disregard for the probable consequences. 38 C.F.R. § 3.1(n). 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). Stated in other terms, a finding of willful misconduct, defined as "an act involving conscious wrongdoing or known prohibited action," negates the statutory presumption that a disease or injury was incurred in the line of duty. 38 C.F.R. § 3.1(n); Daniels v. Brown, 9 Vet. App. 348, 351 (1996). A veteran cannot receive VA compensation for a disability that is the result of willful misconduct. 38 U.S.C. §§ 105(a), 1110. See Crediford v. McDonald, No. 14-2018, slip op. at 2 (U.S. Vet. App. Aug. 31, 2015) (nonprecedential memorandum decision). The simple drinking of an alcoholic beverage is not of itself willful misconduct; however, 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). 38 U.S.C. § 105(a) establishes a presumption in favor of finding of line of duty. 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). The dispositive issue in this matter is whether the August 1983 motor vehicle accident was the result of willful misconduct. This is key. Turning to the evidence, the Veteran's service treatment record (STR) indicates that a motor vehicle accident took place during the Veteran's active duty service. An August 1983 STR stated the following: "[Veteran arrived] to the emergency room via German ambulance with complaints of a motor vehicle accident with multiple lacerations." Other STR entries record the motor vehicle accident and a brief examination was performed in September 1983, documenting that it was being conducted in the wake of the accident. In the months that followed, his STRs reflect he filled out a client intake form for alcohol treatment and was placed on a temporary profile. During the June 2019 hearing, the Veteran's representative stated that the Veteran was not driving the vehicle at the time of the accident and was instead located in the front passenger seat. She also notes that the record does not contain a notation regarding the Veteran's blood alcohol content level at the time of the accident, nor does it contain a formal finding of willful misconduct by VA. The Veteran testified that he was coerced into pleading guilty "to get from under this thing." This ultimately resulted in him receiving a court martial hearing and being ordered to four months of hard labor. Thereafter, he went back on active duty and when that ended, he completed approximately 17 years in the National Guard. While the Veteran contends that he was not the driver of the vehicle during the accident and alcohol was not involved, evidence prior to his June 2019 hearing suggests strongly otherwise and has more probative weight to the overall claim than his statements at this time. In the Veteran's military personnel records, his February 1984 court martial order indicated that he pled guilty to three charges and specifications, which include operating a vehicle in a reckless manner, operating a vehicle while drunk, and operating a vehicle "in a reckless manner by driving at a high rate of speed causing said vehicle to strike the right lane curb, losing control of said vehicle causing it to leave the road and strike a light pole, and thereby resulting in the injury of Specialist Five [redacted]." The Board acknowledges that the entry from the date of the accident at Mannheim Health Clinic Emergency Room states the "[Veteran] was [a] passenger in car that struck another object. Patient was in front seat, was not thrown from vehicle, and did not lose consciousness." It then, however, noted, "he admits to alcohol consumption prior to the accident [observation]: talkative, but slightly incoherent." It is important for the Veteran to understand that the Board has reviewed this case in great detail. The observations at this point in the record are from trained medical personnel and the Veteran himself admitted to drinking alcohol prior to the accident. However, the notation regarding his position in the vehicle was later refuted by his finding of guilt for driving while intoxicated, as well as his own admissions during the hearing with the Decision Review Officer (DRO). His testimony during that hearing is at odds with the testimony he provided at his June 2019 video conference hearing that occurred three years prior. During the January 2016 DRO hearing, he distinctly stated that he "took his eyes off the road and hit a curve." Later in the hearing, he explicitly stated he was the driver of the vehicle. Simply stated, he is lying to the VA now, or he was lying to the VA then. Overall, the Board cannot accept the Veteran's recollections The Board finds that the Veteran's charges, guilty plea, some prior statements, and ultimate finding of guilt hold greater probative weight than the Veteran's current denials of drinking and/or driving at the time of the accident. At two different times, the Veteran has testified to driving the vehicle and then later claimed that he was the passenger of the vehicle. Overall, his testimony on this material fact impeaches the overall credibility of his June 2019 testimony. See generally State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) (stating "Generally, after a proper foundation has been laid, a witness may be impeached by evidence of his declarations or statements which are either inconsistent or contradictory to his testimony at trial. The fact that he has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony.") After review of the evidence, the Board finds that the Veteran's alcohol consumption and reckless driving was the proximate cause of the motor vehicle accident which caused his injuries and subsequent death of a fellow serviceman. The Veteran's rib fractures, lung injury, facial scar, and PTSD 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 1984 court martial order and while in this condition, he undertook driving a motor vehicle "in a reckless manner" and "at a high rate of speed." The Veteran exhibited wanton and reckless disregard for the probable consequences of driving under the influence during the night in question. See Myore, 9 Vet. App. at 503-04. This action proximately and immediately caused his motor vehicle accident and resulted in injuries, as indicated by the August 1983 STR, which documented the Veteran's accident. Lastly, while the Veteran contends that he was coerced to pleading guilty in his February 1984 court martial order, ultimately, 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 rib fractures, lung injury, facial scar, and PTSD. Therefore, the claims must be denied as they are without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (Continued on the next page) 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 claims, 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. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.