Citation Nr: 21006635 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-43 855 DATE: February 4, 2021 ORDER New and material evidence has been received that is sufficient to reopen the claim for entitlement to service connection for residuals of skull fracture. Service connection for residuals of traumatic brain injury (also claimed as skull fracture) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the injuries he sustained as the result of a motorcycle accident in April 1980 were incurred in the line of duty and not the result of the Veteran’s own misconduct. 2. In an April 1983 rating decision, the agency of original jurisdiction denied the Veteran’s claim for entitlement to service connection for residuals of skull fracture. 3. The Veteran did not file a notice of disagreement with the April 1983 rating decision, nor was any new and material evidence received within one year. 4. Additional evidence has been received since the April 1983 rating decision that is not cumulative or redundant of the evidence of record at the time of that decision, and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for residuals of traumatic brain injury (also claimed as skull fracture). 5. The evidence of record supports a finding that the Veteran has current residuals of traumatic brain injury as a result of the motorcycle accident in April 1980. CONCLUSIONS OF LAW 1. Injuries sustained by the Veteran as a result of a motorcycle accident in April 1980 were incurred in the line of duty and not the result of the Veteran’s own misconduct. 38 U.S.C. §§ 105, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301. 2. The April 1983 rating decision denying entitlement to service connection for residuals of skull fracture is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received since the April 1983 rating decision that is sufficient to reopen the claim for entitlement to service connection for residuals of traumatic brain injury (also claimed as skull fracture). 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for residuals of traumatic brain injury have been met. 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1976 to December 1981. The Veteran received an honorable discharge for the purpose of reenlistment in August 1979, and was separated with a characterization of service under honorable conditions (general) in December 1981. A Board hearing was held before the undersigned Veterans Law Judge in January 2017, and a transcript of the hearing is of record. In February 2019, the Board remanded the issue of whether the injuries sustained by the Veteran in an April 1980 motorcycle accident were incurred in the line of duty. The Board finds the agency of original jurisdiction (AOJ) has substantially complied with the February 2019 remand directives, and the evidence of record is sufficient to proceed with a decision. Willful Misconduct In March 2008, the Veteran submitted an application to reopen his claim for entitlement to service connection for a severe head injury with skull fracture and associated residuals. See March 2008 VA Form 21-526. In relevant part, an October 2008 administrative decision found that the Veteran was not entitled to service connection for residual disabilities, to include residuals of a severe head injury with skull fracture, incurred as a result of the Veteran’s April 1980 motorcycle accident because the motorcycle accident was due to the Veteran’s willful misconduct. Under 38 C.F.R. § 3.301, direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran’s own willful misconduct or, for claims filed after October 21, 1990, the result of his abuse of alcohol or drugs. See also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). 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. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury. An injury or disease incurred during active military service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs. 38 C.F.R. § 3.301(d). Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to the user. The simple drinking of alcoholic beverage is not of itself willful misconduct. 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, the disability will be considered the result of willful misconduct. A service department finding that injury occurred in line of duty and 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). In reviewing the evidence of record pertaining to the Veteran’s April 1980 motorcycle accident, service treatment records document that the Veteran was taken to a private hospital following the accident where he was noted to be unresponsive except for purposeful movements to deep pain. See May 1980 Narrative Summary by Dr. V.G.S. Dr. V.G.S. indicated there were no witnesses available for a description of the accident. The Veteran was transferred for admission to a Naval hospital where he was diagnosed with severe closed head injury with right temporoparietal skull fracture and posttraumatic subarachnoid hemorrhage. In December 1980, the Veteran was found unfit by a Medical Evaluation Board. A November 1980 Report of Medical Board indicated that the Veteran reported depression, dizziness, and intermittent tinnitus following the April 1980 motorcycle accident. The Report of Medical Board noted that the Veteran underwent psychiatric evaluation in September 1980 for suicidal ideation, and it was felt that the Veteran had a situational maladjustment and posttraumatic encephalopathy. Psychological testing revealed evidence of posttraumatic organic brain syndrome and posttraumatic depressive reaction. The Report of Medical Board indicated that it was the opinion of the Neurosurgery Service and Psychological Service that the Veteran had a low probability of successful functioning, and recommended referral to a Physical Evaluation Board for final disposition. The Report of Medical Board noted that the status of a line of duty/misconduct determination related to the April 1980 motorcycle accident was unknown pending investigative report. In a December 1980 Naval message, the status of the line of duty investigation was requested. The Naval message noted that the Veteran was referred to a Physical Evaluation Board by the Medical Board as a result of multiple injuries sustained in an April 1980 motorcycle accident. The Naval message stated that a line of duty investigation was required prior to a disability finding being completed by the Physical Evaluation Board. While a line of duty determination is not of record, a Physical Evaluation Board recommended the Veteran be found fit for duty in March 1981. See March 1981 Notification to Member of Recommended Findings. The Veteran demanded a formal hearing before the Physical Evaluation Board. During the April 1981 formal hearing before the Physical Evaluation Board, the Veteran reported he was unable to remember anything about the April 1980 motorcycle accident. The Veteran reported he had been out with a couple of friends before the accident. The Veteran reported he was not wearing a helmet at the time of the motorcycle accident that occurred off base, and that such was not required by state law. A Physical Evaluation Board member questioned whether the Veteran had a history of being a heavy drinker before the April 1980 motorcycle accident, to which the Veteran responded affirmatively. The Veteran did not dispute a statement by a Physical Evaluation Board member that the Veteran had been drinking the night prior to the accident, and the evidence before the Physical Evaluation Board demonstrated that the Veteran’s blood alcohol was 0.16 percent. The Veteran reported he was never cited by law enforcement for the motorcycle accident in April 1980. At the conclusion of the April 1981 formal hearing, the Physical Evaluation Board determined that, although still somewhat handicapped by residual depressive reaction and mild memory impairment as a result of the April 1980 motorcycle accident, the Veteran was fit to reasonably perform the duties of his rate in the Navy. In December 1981, the Veteran was recommended for administrative separation from the United States Navy, which was effectuated the same month. The recommendation for discharge noted the Veteran did not have a record of any involvement with civil authorities. In December 2014 correspondence, the Veteran indicated that he recalled having a few drinks on the night of the motorcycle accident in April 1980. See also January 2017 Board hearing transcript. The Veteran reported he was approaching a stop light on his motorcycle when a car going in the same direction entered his lane and abruptly stopped at the light. The Veteran indicated the motorcycle accident in April 1980 was a result of not having enough room between himself and the car that had entered his lane in very close proximity to him, and that he was unable to stop or steer clear of the vehicle. The Veteran reported he never received a citation or saw an accident report related to the motorcycle accident. See also May 1980 Narrative Summary (indicating there were no witnesses available for a description of the accident). In February 2019, the Board remanded the issue of whether the Veteran’s injuries resulting from the April 1980 motorcycle accident were incurred in the line of duty and not due to misconduct to: (1) request inpatient treatment records related to the accident, to include the private hospital where the Veteran was transported immediately following the accident; (2) request any civil or military law enforcement reports or charges related to the April 1980 motorcycle accident; (3) obtain information/evidence presented at the April 1981 formal hearing before the Physical Evaluation Board concerning the Veteran’s blood alcohol level at the time of the April 1980 motorcycle accident; and (4) request any investigative reports or line of duty determinations from the service department. The Board finds that efforts to obtain the above mentioned records have been exhausted, and such records have been destroyed or are unavailable. In this case, the Board resolves reasonable doubt in favor of the Veteran in finding that injuries sustained by the Veteran as a result of a motorcycle accident in April 1980 were incurred in the line of duty and not the result of the Veteran’s own misconduct. Although the probative evidence of record suggests that the Veteran had a history of excessive alcohol usage prior to the motorcycle accident in April 1980, and that he was drinking alcohol on the night of the motorcycle accident in April 1980, the evidence of record does not demonstrate intoxication was the proximate and immediate cause of the motorcycle accident and resulting injuries. See 38 C.F.R. § 3.301(c)(2); see also 38 C.F.R. § 3.1(n). In this regard, the Board notes that it appears the Veteran did not receive any citation or charges by law enforcement related to operating his motorcycle under the influence or while intoxicated. Nor is there evidence that the Veteran’s failure to wear a helmet involved deliberate or intentional wrongdoing, as the Veteran reported he was not required by state law to wear a helmet while driving his motorcycle off base. Additionally, although a line of duty investigation is not of record, the December 1980 Naval message stated such was required prior to a disability finding being completed by the Physical Evaluation Board. In this case, the Physical Evaluation Board completed a disability determination, finding the Veteran fit for duty, in March and April 1981. Based on the transcript of the formal hearing before the Physical Evaluation Board in April 1981, it was acknowledged that the Veteran was intoxicated at the time of the April 1980 motorcycle accident. However, the record does not demonstrate that such impairment was the proximate cause of the Veteran’s accident and resulting injuries. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the injuries sustained as a result of the motorcycle accident in April 1980 were incurred in the line of duty and not the result of the Veteran’s own misconduct. New & Material Evidence As discussed above, the Veteran submitted an application to reopen his claim for entitlement to service connection for a severe head injury with skull fracture and associated residuals in March 2008. A claim that has been finally adjudicated may only be reopened by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156 (a). Historically, the Veteran submitted a claim for entitlement to service connection for concussion with cerebral contusions in April 1982. See April 1982 VA Form 21-526. In an April 1983 rating decision, entitlement to service connection for residuals of skull fracture was denied on the grounds that the Veteran did not demonstrate current symptoms considered secondary to a skull fracture, and there was no evidence of any residual neurological defect. See also March 1983 VA examination. The Veteran did appeal the April 1983 rating decision, nor was any new and material evidence received within one year. As such, the April 1983 rating decision is final. In connection with his March 2008 application, the Veteran submitted private treatment records evidencing current diagnoses related to his April 1980 head injury. The Board finds such evidence to be new and material, and given the decision herein finding that the injuries sustained as a result of the motorcycle accident in April 1980 were incurred in the line of duty and not the result of the Veteran’s own misconduct, the claim for entitlement to service connection for residuals of a head injury is reopened. The Board notes that service records related to the Veteran’s April 1980 motorcycle accident and medical condition in service were associated with the claims file after the April 1983 rating decision. Under 38 C.F.R. § 3.156(c), if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding the provisions of 38 C.F.R. § 3.156(a). In this case, the April 1983 rating decision denied the Veteran’s claim for entitlement to residuals of skull fracture on the grounds that the Veteran did not demonstrate a current disability. The service records associated with the claims file after the April 1983 rating decision are not relevant to whether the Veteran had a current disability at the time of that decision. As such, the Board finds that 38 C.F.R. § 3.156(c) is not applicable. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). In this case, as discussed in detail above, there is no question that the Veteran sustained a severe head injury in service as a result of the April 1980 motorcycle accident. In a November 2007 psychiatric evaluation, Dr. M.N. reported the Veteran had the following current diagnoses as a result of the head injury in service: (1) personality change; (2) mood disorder not otherwise specified; and (3) cognitive disorder not otherwise specified. In a January 2008 psycho-diagnostic evaluation, Dr. W.E.M. reported the Veteran had a current diagnosis of mood disorder due to traumatic brain injury. In a June 2008 cognitive-linguistic evaluation, medical testing revealed deficits affecting the areas of processing speed, cognitive efficiency, long-term retrieval, short-term memory, auditory processing, fluid reasoning, thinking ability, word finding, and cognitive stamina. The evaluation indicated the Veteran presented with symptoms that are consistent with a cognitive communication disorder associated with a concussive-type injury. The evidence of record establishes that the Veteran has current residuals of traumatic brain injury that were sustained as a result of the April 1980 motorcycle accident, which based on the decision herein, was incurred in the line of duty and not the result of the Veteran’s own misconduct. Accordingly, entitlement to service connection for residuals of traumatic brain injury is granted. REASONS FOR REMAND The issue of entitlement to a TDIU was raised by the Veteran’s attorney. See December 2015 VA Form 9 with associated correspondence; see also May 2009 Social Security Administration decision. To date, the Veteran has not been provided with proper notice concerning requirements for a TDIU claim. Additionally, the claim for a TDIU is inextricably intertwined with the initial evaluation to be assigned by the AOJ for residuals of traumatic brain injury. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In light of the above, and the decision herein granting entitlement to service connection for residuals of traumatic brain injury, the Board finds remand is necessary for the AOJ to provide the Veteran with proper notice and adjudicate the issue of entitlement to a TDIU in the first instance. The matter is REMANDED for the following action: Send the Veteran and his attorney the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, request that he complete and return VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.