Citation Nr: 21012102 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-41 088 DATE: March 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT That Veteran’s acquired psychiatric disorder is the result of willful misconduct during active service insofar as he purchased and consumed a substance other than alcohol for its intoxicating effects and wielded a baseball bat with wanton disregard of the consequences of his actions during a May 23, 1978 altercation. CONCLUSION OF LAW The Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder is foreclosed as a matter of law. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1977 to May 1980. In November 2018, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference Board Hearing. A transcript of that hearing is of record. The record includes diagnoses of depression, posttraumatic stress disorder (PTSD), and schizoaffective disorder, bipolar type. The Board, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), therefore construes the Veteran’s claim as entitlement to service connection for an acquired psychiatric disorder. In a November 2019 decision, the Board of Veterans’ Appeals (the Board) denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (the Court). In August 2020, the Court entered a Joint Motion for Partial Remand vacating the Board denial of service connection for an acquired psychiatric disorder and remanding it to the Board. 1. Entitlement to Service Connection for an Acquired Psychiatric Disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. The Board concludes that entitlement to service connection is foreclosed as a matter of law due to the Veteran’s willful misconduct. Specifically, the Veteran ingested a substance other than alcohol for its intoxicating effects at some time between May 15, 1978 and May 21, 1978. He then initiated and escalated a physical altercation with the individual who sold him the bad drug and others on May 23, 1978. During that altercation, the Veteran wielded a baseball bat, struck two servicemen with the baseball bat, threatened to kill two servicemen, and threatened to inflict bodily injury on a third serviceman. These actions constitute willful misconduct that foreclose the Veteran’s claim. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence of record shows diagnoses for acquired psychiatric disorders that are more likely than not etiologically related to the Veteran’s active service. A January 5, 2018 letter from Dr. R.G., a staff psychologist with a VA medical center, notes diagnoses for depression and PTSD, and a March 28, 2014 letter from a mental health facility similarly documents diagnoses for depression and PTSD. A May 2016 Mental Health Questionnaire completed by Dr. V.Y. documents a diagnosis of schizoaffective disorder, bipolar type. Thus, the Veteran has current diagnoses for multiple acquired psychiatric disorders. With respect to etiology, a May 2016 Mental Health Questionnaire completed by Dr. V.Y. and Dr. R.G.’s January 2018 letter conclude that the Veteran’s acquired psychiatric disorder is due to an assault that occurred during active service. Regardless, entitlement to service connection for an acquired psychiatric disorder is foreclosed as a matter of law due to the Veteran’s willful misconduct in May 1978. The Veteran’s use of a micro dot that be believed to be speed or a similar drug for its intoxicating effects and his initiation and escalation of an assault in which he swung a baseball bat while threatening to kill two fellow servicemen and threatening to injure a third serviceman constitute willful misconduct that precludes entitlement to service connection. Under 38 C.F.R. § 3.1(n), “willful misconduct” is defined as an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. Willful misconduct 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, disease or death. Under 38 C.F.R. § 3.301(a), direct service connection may be granted only when a disability or cause of death 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 31, 1990, the result of his or her abuse of alcohol or drugs. The provisions of 38 C.F.R. § 3.301(d), which specifically address line of duty determinations with respect to abuse of alcohol or drugs, state as follows: Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air 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 drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. Here, the Veteran’s willful misconduct—taking a substance other than alcohol to enjoy its intoxicating effects and initiating an assault that included the use of a baseball bat and verbal threats to kill and injure his fellow servicemen—forecloses entitlement to service connection for an acquired psychiatric disorder as a matter of law. The Board will first summarize the events during May 1978. Then, the Board will analyze why the Veteran’s actions during those events constitute willful misconduct that precludes entitlement to service connection for an acquired psychiatric disorder. A. The Events of May 1978 The Veteran contends in his statements of record and his hearing testimony that he was jumped by three fellow servicemen in his barracks upon returning to his barracks following the conclusion of his workday. He contends that they came out of nowhere and beat him up. The events of May 23, 1978 are, however, more involved than the Veteran’s reports and hearing testimony suggest. A June 1978 U.S. Army Criminal Investigation Division (CID) Report of Investigation (the June 1978 Report or simply the Report) details the events of the May 23, 1978 assault. The investigation included numerous interviews with the Veteran, the other service personnel who participated in the altercation on May 23, 1978, witnesses of the altercation, and senior personnel in the Veteran’s U.S. Army unit at the time of the assault. The Board notes that the names and many locations in the report had been redacted. In the summary that follows, the Board has drawn inferences based on the context and the details provided in the June 1978 Report. According to an interview with the Veteran on May 24, 1978 that is summarized in the Report, the Veteran purchased a micro dot from a fellow serviceman whose name has been redacted from the Report at some time between May 15, 1978 and May 21, 1978. For ease of reference and clarity in this decision, the Board will refer to this individual as “John Doe” or “JD”. JD was noted by the Veteran to a “known drug pusher in the unit and had been selling drugs for a long time.” The Veteran reported in the interview that he consumed the micro dot, which made him sick. He further reported that he was angry with JD because the bad drug had made him sick. While the Veteran’s statements suggest the altercation happened by chance, the June 1978 Report states that the Veteran was actively looking for JD on May 23, 1978. A May 26, 1978 sworn statement from one of JD’s roommates included in the June 1978 Report states he was in the common area of his barracks on the evening of May 23, 1978 when he saw the Veteran coming from the direction of his room. As he entered, his roommate told him that the Veteran was there looking for JD, who was not there at the time. (The Board observes that the Veteran’s knowledge of which room as JD’s suggests that he had prior interactions with JD.) The Veteran reported during the investigative interview on May 24, 1978 that he and another serviceman encountered JD while descending a stairway in the barracks identified as Stack 8 on the evening of May 23, 1978. In a May 24, 1978 interview summarized in the Report, JD stated that he and another serviceman whose name is redacted from the Report were returning from mess hall. The Veteran, JD, and other witnesses interviewed as part of CID’s investigation agree that the Veteran obstructed JD’s path on the stairway in Stack 8. For instance, an interview conducted at 11:30am on May 24, 1978 with a witness noted that the Veteran obstructed JD’s path, and a conversation ensued. In an interview conducted at 1:10pm on May 30, 1978, a witness observed the Veteran obstructed JD’s ascent of the stairwell and began speaking to him while pointing his finger at JD. These witnesses could not hear the initial conversation between the Veteran and JD; however, the Veteran reported on May 24, 1978 that he confronted JD about the bad drug that he had sold him the week prior. Accounts of the encounter on the stairs in Stack 8 indicate that JD attempted to leave and continue up the stairway towards his room. For instance, the two witnesses interviewed on May 24, 1978 and May 30, 1978 referred to immediately above agree that JD attempted to walk away. The Veteran obstructed his path on the stairs for a second time. According to theses witnesses, the Veteran told JD not to walk away while he was speaking. The witness interviewed on May 24, 1978 at 11:30am reported that the Veteran threatened to “beat [JD’s] a--.” At this point, the Veteran also shoved JD according to most of the account descriptions in the June 1978 Report. For instance, JD’s May 24, 1978 sworn statement reports that the Veteran shoved him. The witnesses interviewed on May 24, 1978 and May 30, 1978 also reported that the Veteran shoved JD when JD attempted to leave. In his sworn statement dated May 26, 1978, one of JD’s roommates reported that JD told him that the Veteran poked him in the chest and shoved him, which prompted JD to strike the Veteran in the face. The Veteran, however, reported that he did not shove JD. After the Veteran prevented him from going to his room in the barracks, JD grabbed the Veteran and punched him in the face three or four times. Two servicemen in the Stack 8 common area, one of whom was interviewed at 1:10 on May 30, 1978, broke up the fight. The Veteran departed from the barracks common area. According to a May 30, 1978 interview conducted at 8:30am with the Veteran’s roommate, the Veteran returned his room after the fight. The Veteran then went looking for a person to accompany him in confronting JD. A May 30, 1978 statement from a serviceman whose name is redacted indicates that the Veteran was driving around the military installation looking for him. The Veteran found him, told him about the fight, and together they drove back to the Veteran’s barracks. Once there, the Veteran went to his room and grabbed a baseball bat. As for JD, he returned to his room immediately after the fight on the Stack 8 common area stairway. In his May 24, 1978 sworn statement, JD reported that he was in his room at the barracks watching television. This accords with a May 26, 1978 sworn statement from one of his roommates in which he stated that he and his two roommates were watching television in their room following the fight on the Stack 8 stairs earlier in the evening. While JD and his roommates were watching television, one of them left via a window to get a snack. Almost immediately thereafter, the Veteran, accompanied by the serviceman he picked up after the fight on the stairs, came to JD’s room. This was the Veteran’s second visit to JD’s room during the evening of May 23, 1978. The Veteran entered the room carrying a baseball bat, swung it at JD, and reportedly said, “I’m going to kill you.” JD jumped out of a window in the room and sought shelter in a nearby barracks building, identified as Stack 4. According to JD’s sworn statement and the May 24, 1978 sworn statement from one of JD’s two roommates, the Veteran and the person accompanying him followed JD out the window. The Board notes that the person accompanying the Veteran reported in his May 30, 1978 statement that he did not hear the Veteran threatening to kill anyone. The Veteran followed JD and one of his roommates to the neighboring building that the Veteran identified as Stack 4 in his May 24, 1978 investigative interview. JD’s May 24, 1978 sworn statement and the May 24, 1978 statement of JD’s roommate state that they tried to gain entry into a room in Stack 4; however, the Veteran and the person with him cornered them near a stairway in a common area of the building. Residents of the barracks noticed, and JD’s roommates stated that the Veteran left the area. Thereafter, JD and his roommate entered the room of an SP4 whose name was redacted from the June 1978 Report. The Veteran and the serviceman with him opened the door to this room. The Veteran, on a bench in the common area immediately outside the room, swung the bat, hitting the door, the door frame, and the hand of JD’s roommate. The Board notes that the Veteran admitted to swinging the bat and hitting the door but denied striking the hand of JD’s roommate. The Veteran then stepped off the bench to enter the SP4’s room looking for JD. At that point, other servicemen in the area pulled the Veteran from the room. After being pulled from the SP4’s room in Stack 4, the Veteran found a second serviceman to accompany him. In an interview conducted at 7:55am on June 1, 1978, that serviceman reported that he met the Veteran on his way back to the barracks after leaving the gym. The Veteran asked him to follow along. When he asked why, the Veteran told him that “some guys jumped” him. According to this interview, the Veteran, now joined with two fellow servicemen, returned to JD’s room in Stack 8 for the third time on May 23, 1978. Upon arrival, the door was locked because JD’s roommate who did not jump out the window closed and locked the door after his roommate, JD, the Veteran, and the serviceman accompanying the Veteran left the room via the window. The roommate opened the door, the Veteran and the two men with him entered, and closed the door behind them. The Veteran asked where JD was. The roommate informed the Veteran that he had not returned yet. The Veteran then began rummaging through the room in a disorderly way. The Veteran discussed using the bat to destroy property in the room. JD’s roommate asked him not to, stating that it was his. In response, the Veteran swung the bat and struck the roommate in his chest, stating, “what I should do is beat your head in so [JD] can see what’s gonna happen to him.” As he left the room, the Veteran told the roommate to inform JD that he should not sleep because the Veteran was going to kill him. When asked, the roommate stated that he believed the Veteran was serious when saying that he wanted to kill JD. The Board notes that a May 30, 1978 sworn statement from one of the two serviceman accompanying the Veteran reported that the Veteran and the roommate present at that time shook hands, and the Veteran and those with him left JD’s room and sat on a landing in the barracks. The interactions between the Veteran and JD continued into the morning of May 24, 1978. According to an interview conducted at 7:45am on May 26, 1978, a SGT whose name was redacted from the June 1978 Report, JD came to the orderly room in the barracks on May 24, 1978 to make a report regarding the events of the prior evening. As JD was writing out his statement, the Veteran entered the orderly room. As he was leaving, he pointed at JD and said, “when I catch up with you, your a-- is mine.” This accords with JD’s May 24, 1978 sworn statement in which he reported that he was in the orderly room around 9:00am on May 24, 1978 to file a complaint against the Veteran. He stated that the Veteran entered the same room as he was completing complaint and again threatened JD. A report of the assault was made to the Veteran’s unit commander on May 24, 1978. A criminal investigation was launched on May 24, 1978. The investigation concluded in early June 1978, and the investigative report was completed in mid-June 1978. As a result of the events on May 23, 1978, the Veteran was court martialed in August 1978 on a count of assault against JD for swing the bat at him (Count I, Specification 1), against one of JD’s roommates for striking him in the hand with the baseball bat, and against JD’s other roommate for striking him in the chest with the baseball bat (Count I, Specification 3). He was also charged with a count for wrongful communication of an intent to kill JD (Count II, Specification 1), an intent to kill one of JD’s roommates (Count II, Specification 2), and an intent to inflict bodily injury on JD’s other roommate (Count II, Specification 3). The Veteran was also charged with voicing an intent to cause bodily injury for his statement to JD on the morning of May 24, 1978 (Count II, Specification 4). The Veteran plead not guilty to both counts. In an August 1978 trial, the Veteran was found guilty on both counts. B. Analysis of the Events of May 1978 and Their Impact on the Claim of Entitlement to Service Connection for an Acquired Psychiatric Disorder The Board concludes that the Veterans actions from May 15, 1978 to May 21, 1978 and on May 23, 1978 are two related acts of willful misconduct that foreclose entitlement to service connection for an acquired psychiatric disability. a. May 15, 1978 to May 21, 1978: The Purchase and Consumption of a Micro Dot In a May 24, 1978 interview undertaken as part of the criminal investigation into the May 23, 1978 assault that is summarized in the June 1978 Report, the Veteran reported that he purchased a micro dot for $1.50 from John Doe, a fellow service member whose name is redacted from the Report, during the period from May 15, 1978 to May 21, 1978. The Veteran believed the micro dot was “speed or some other drug,” though he was not certain of the dot’s exact chemical makeup. He subsequently consumed the microdot. The results were not what the Veteran had intended at the time based on his May 24, 1978 interview in which he described the micro dot as “bung stuff” and a “bad drug.” The June 1978 Report summary of the interview notes that “bung stuff” meant that it made the Veteran sick after he consumed it. The interview report does not detail the ill-effects the Veteran suffered as a result of the micro dot. The Board concludes that the purchase and consumption of the micro dot constitute willful misconduct for purposes of entitlement to direct service connection. See 38 C.F.R. § 3.1(n); 3.301. He intentionally purchased the dot believing it to be speed or another drug. He then intentionally consumed the micro dot even though he did not know its exact chemical composition, for its intoxicating effects. This is clear in the Veteran’s reaction to ill effects of the micro dot. By his own admission on May 24, 1978, the Veteran was angry about the reaction that he had to the drug, describing it as “bung stuff” because it had made him ill. The Report discussions the Veteran’s interview in which he stated that he was angry because he had gotten sick from the experience of consuming the micro dot. His anger shows that becoming ill was not the effect that the Veteran desired the micro dot to have when he purchased and consumed it. The Board concludes that the May 24, 1978 interview with the Veteran is highly probative in showing that the Veteran purchased the micro dot for its intoxicating effects. The statements summarized in the June 1978 Report were made in the course of a criminal investigation—and after the Veteran was appraised of and waived his rights—which reinforces their credibility and probative weight. The Veteran had every incentive to tell the truth, and in doing so made statements against his own interest. See Caluza v. Brow, 6 Vet. App. 498 (1995) (VA may, in part, consider interest when evaluating evidence); see also Fed. R. Evid. 804(b)(3) (providing an exception against the admission of hearsay evidence when a witness is unavailable because the statement would have been made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a possibility of exposing the declarant to civil or criminal liability). His statements show that he consumed the micro dot, a substance other than alcohol, for its intoxicating effect. b. May 23, 1978: The Altercation in which the Veteran Wielded a Baseball Bat and Repeatedly Threatened to Kill Fellow Service Members The Veteran’s purchase and use of drugs and the altercation on May 23, 1978 are not independent events. Rather, his willful misconduct with respect to the purchase and use of the micro dot addressed above was the proximate cause of the Veteran’s confrontation with JD on the stairway in Stack 8 on the evening of May 23, 1978 and the subsequent events of that same evening and the following morning. In the May 24, 1978 investigative interview, the Veteran described his motives for confronting JD and attributed the May 23, 1978 assault on the stairway in Stack 8 to his anger over the ill effects he suffered after consuming the micro dot. The Veteran stated that he “had become involved in a fist fight with [JD] because [JD] had sold him a micro dot that when taken by [the Veteran] had had a bad effect on him.” Later in the interview, the Veteran noted that he passed JD on a stairway in a barracks and asked him why he sold the Veteran “the bad drug.” Accordingly, the Veteran’s willful misconduct in taking the micro dot, a substance other than alcohol, for its intoxicating effects directly precipitated his willful misconduct in confronting JD and escalating the conflict by procuring a baseball, swinging a baseball bat at three fellow service men, striking two fellow service men with that baseball bat, threatening to kill two of the service men, and threatening to injure the third serviceman. Again, the May 24, 1978 interview is highly probative evidence regarding the Veteran’s motive in confronting JD on May 23, 1978. The interview was part of a criminal investigation into the May 23, 1978 assault and was given after the Veteran had been appraised of and waived his rights. During the course of the interview, the Veteran made statements not in his interest, reinforcing their credibility and probative weight. See Caluza, supra; Fed. R. Evid. 804(b)(3). The Veteran knew his motives for confronting JD on May 23, 1978 and plainly stated them in the May 24, 1978 interview. In doing so, he provided additional detailed information regarding the timing of the purchase of the micro dot, how much it cost, his use of the micro dot, its effects, his emotional response to those negative effects, and his anger towards JD. These details provide a thorough context that explains the Veteran’s anger and motives for confronting JD on May 23, 1978 and increase the probative value of the May 24, 1978 interview’s explanation for the cause of the fight. The Board concludes that the Veteran’s statements regarding the cause of the fight on May 23, 1978 to be more probative than other evidence of record regarding the cause of the fight. Recognition is given to the fact that only the Veteran identified the micro dot as the cause of the confrontation on May 23, 1978. Indeed, in his May 24, 1978 statement, JD identified the Veteran’s obstruction of his path up the stairs as the cause of the fight between him and the Veteran. In the context of a criminal investigation in which he was appraised of his rights, it is reasonable that JD would not identify as a drug dealer who sold the Veteran a micro dot when reporting or discussing the events of May 23, 1978. If he had identified himself as the unit drug dealer, as described by the Veteran, JD would have been opening himself up to a criminal investigation and punishment. It was to JD’s advantage to feign ignorance as to the reason that the Veteran confronted him. More importantly, the Board notes that the Veteran was responsible for the confrontation that ended in the fight on the stairs. The Veteran then responded to that fight, which he precipitated because of his use of the micro dot, by escalating the confrontation. In their interviews and statements, JD’s roommates did not know what caused the confrontation between JD and the Veteran on the Stack 8 stairway. The roommate of JD who did not leave via a window attributed the Veteran’s intent to the altercation on the stairs earlier that evening in which the Veteran’s eye was cut by punches to his face from JD. The Board notes that a 7:55am interview on June 1, 1978, with one of the servicemen accompanying the Veteran reported that JD’s roommate said that he was new to the unit, did not want any trouble, and did not know what was going on between the Veteran and JD. The Veteran’s statement to the second serviceman to join him on the evening of May 23, 1978 also attributed the later assaults to the fight on the Stack 8 stairway. However, the Veteran plainly stated that he confronted JD because of the bung stuff and bad drug that made him sick at some time between May 15. 1978 and May 21, 1978. In light of the foregoing, the Board concludes that the assault on the steps on Stack 8 on May 23, 1978 were the proximate result of the Veteran’s willful misconduct during the period of May 15, 1978 to May 21, 1978. The Veteran initiated the confrontation that ended in him being punched by JD. Moreover, the evidence shows that the Veteran initiated physical contact by shoving JD when JD attempted to walk away from him. In addition, the Board concludes that the Veteran engaged in willful misconduct insofar as he escalated the events of the evening of May 23, 1978. He intentionally sought out JD by visiting his room before meeting him on the stairs. Once on the stairs with him, the Veteran confronted JD, kept him from departing the confrontation, and shoved him. After that fight, the Veteran retrieved a baseball bat, visited JD’s room for a second time that evening, chased him out of a window to pursue him to a neighboring building. There, he continued to threaten JD, swinging the baseball bat, striking a door, and making contact with a fellow serviceman’s hand. Thereafter, he recruited a second person to join him and went to JD’s room for the third time. There, he struck JD’s other roommate in the chest and threatened to strike him in the head as an example of what he would do to JD. While the blows to the hand and chest of JD’s roommates did not result in injuries requiring medical attention, the Veteran’s repeated use of the baseball bat on May 23, 1978 displayed wanton and reckless disregard for the consequences of his actions. Indeed, Charge I of the Veteran’s August 1978 court martial described his use of the baseball bat as “a means likely to produce grievous bodily harm.” Accordingly, the Veteran’s intentional, deliberate actions in confronting JD and assaulting JD and his roommates with a baseball bat on the evening of May 23, 1978 constitutes willful misconduct that forecloses entitlement to service connection. See 38 C.F.R. §§ 3.1(n), 3.301. In reaching this conclusion, the Board notes three statements of record from the Veteran describing an in-service assault. In a December 2009 statement, the Veteran reported that he was jumped by three men in 1982 while stationed at Fort Hood. He claimed that he was hospitalized. In a January 2012 statement, the Veteran claimed that he was jumped and beaten by three men in 1979. He reported that he arrested and sent to the stockade for 93 days. He also reported receiving a head injury. The Board concludes that these statements are entitled to very little probative weight regarding the circumstances of the in-service assault. First, the Veteran misstates the date of the assault, placing it in 1982 and 1979 when the June 1978 Report shows that it occurred on May 23, 1978. Second, the statements, provided decades after the May 1978 assault, contain less detail regarding the May 23, 1978 assault than the June 1978 Report. The Report, completed after a criminal investigation undertaken in the days and weeks immediately after the attack, is significantly closer in time and provides much more detail regarding the assault and the circumstance leading up to it than the Veteran’s November 2009 and January 2012 statements. In addition, the Report includes a summary of the interview with the Veteran on May 24, 1978, which provides his assessment of the circumstances leading up to assault the day after it occurred. Given this proximity in time, and the Veteran’s participation in the investigative interview, the Board concludes that the probative weight of the June 1978 Report significantly outweighs the little probative value of the November 2009 and January 2012 statements. In an October 2010 statement, the Veteran reported that he was attacked by three men in the barracks at the end of his workday in May 1979. He reported that he received facial scars, bruises to the head, bruises to the face. According to the Veteran, the attack lasted 20 to 30 minutes. He states that he was able to break away, retrieved a baseball bat, and “beat all three of the soldiers who attacked me.” This statement is again less probative than the June 1978 Report regarding the events of May 23, 1978. The Veteran again misstates the year of the event. His summary of the event is more accurate than his statement in November 2009 when compared with the June 1978 report. However, the June 1978 Report shows that the Veteran initiated the altercation. He went to JD’s room looking for JD, and upon meeting him twice impeded his ascent up the barracks stairway. The Veteran also claimed that the assault prompted him to use drugs. By his own admission in May 1978, the Veteran was taking substances he believed to be drugs for their intoxicating effects prior to the May 23, 1978 altercation. Thus, his use of drugs predated the May 23, 1978 assault. The Veteran’s November 2018 hearing testimony is similarly less probative than the June 1968 Report. The Veteran testified that he was in the barracks common room following a long day involving transport helicopters and his assailants “just jumped up and started whooping” him. The June 1978 Report indicates that the Veteran instigated the assault. The Veteran responded that there was no cause, and that his assailants were drinking, and the attack came out of nowhere. The Veteran’s testimony is entitled to very little probative weight, as it is inconsistent with his statements in May 1978 and other witnesses statements summarized in the June 1978 Report. While the Veteran testified in November 2019 that he had no idea what was going on that day, he stated on May 24, 1978 that he confronted JD because JD had sold him drugs that made the Veteran sick. Seeing as these statements were made proximate to the events of May 23, 1978 as part of the criminal investigation into the assault, the Board finds them more probative than the Veteran’s hearing testimony regarding the cause and circumstances of the May 23, 1978 assault. The Veteran’s attorney argued that the statements of record from JD and the other two servicemen were not credible because the Veteran was not dishonorably discharged from service following his August 1978 general court martial. The Board disagrees. Witnesses other than the three purported assailants uniformly stated that the Veteran initiated the confrontation with JD on May 23, 1978. Given this uniformity of statements during the investigation into the events of May 23, 1978, the Board concludes that the statements of record in the June 1978 Report are credible and probative. The Veteran’s attorney also argued during the November 2019 hearing that the Veteran’s award of service connection for a scar above his left eye prevents a finding that willful misconduct precludes his claim of entitlement to service connection for an acquired psychiatric disorder. The Board disagrees. The grant of service connection did not attribute the scar above the Veteran’s left eye to an assault. The Veteran received a VA examination in January 1981 and the wound requiring four stitches was reported to be from a fall during a training exercise on May 31, 1978. May 31, 1978 service treatment records document the removal of four stitches from the Veteran’s left eye lid; however, they do not describe the circumstances in which the Veteran received the laceration. Thus, VA at the time of the October 1981 rating decision granting service connection did not consider the Veteran’s conduct in May 1978 and attributed the scar to a fall during a training session. That grant of service connection was unrelated to the assault on May 23, 1978. Accordingly, the grant of service connection in October 1981 for a scar above the Veteran’s left eye does not preclude the Board from finding that willful misconduct from May 15, 1978 to May 21, 1978, and on May 23, 1978 foreclose entitlement to service connection for an acquired psychiatric disorder. The Board also notes a May 2014 statement from the Veteran’s sister reporting that the Veteran was confined following the events of May 23, 1978, and his mother visited him during that confinement. This statement reinforces the seriousness of the events that unfolded on May 23, 1978, affording additional context for the Veteran’s wanton disregard for the consequences of his actions during the May 23, 1978 altercation. In summary, the assault on May 23, 1978 is shown by evidence of record to be etiologically related to his current acquired psychiatric disorder. However, controlling precedential authority and applicable laws and regulations foreclose the Veteran’s entitlement to service connection for an acquired psychiatric disorder due to his willful misconduct. See Allen v. Principi, 237 F.3d. 1368 (Fed. Cir. 2001). The Veteran knowingly and intentionally consumed a substance other than alcohol that he believed was speed or a similar drug between May 15, 1978 and May 21, 1978 for its intoxicating effects. He had a bad reaction to the drug and became ill. This is the first instance of willful misconduct. As a direct result of the ill effects of the bad drug, the Veteran was angry with the person who sold the micro dot to him, referred to herein as John Doe or JD. On May 23, 1978, which was proximate to when he used the micro dot, the Veteran confronted JD about selling him the bad drug that made him sick. JD punched the Veteran in the face three or four times after the Veteran prevented JD from walking away from him and shoved him. That same evening, the Veteran, after retrieving a baseball bat from his room, went to JD’s room in Stack 8, threatened JD and his roommates, and pursed JD out the window. He followed JD to a neighboring barracks, Stack 4. There, he continued to threaten to kill JD and JD’s roommate. He also swung the baseball bat striking the door, door frame, and the hand of one of JD’s roommates. The Veteran, restrained by servicemen who resided in Stack 4, left the building, found a second person to accompany him. He then returned to JD’s room for a third time on the evening of May 23, 1978. There, he struck JD’s roommate in the chest and threatened to bash his head in. The Veteran’s wanton disregard for the consequences of his actions on May 23, 1978—described in his court martial as possibly resulting in grievous bodily injury—constitute the second instance of willful misconduct. Together, these two related instances of willful misconduct preclude the Veteran’s claim for service connection for an acquired psychiatric disorder as a matter of law. See 38 C.F.R. §§ 3.1(n), 3.301. The Veteran’s claim must, therefore, be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.