Citation Nr: 21012879 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-26 095 DATE: March 5, 2021 ORDER Service connection for a left eye condition is denied. FINDING OF FACT The Veteran’s injury to his left eye in active service resulted from the abuse of alcohol, and therefore was not incurred in line of duty. CONCLUSION OF LAW The criteria for service connection for a left eye condition have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter for further development in January 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Left Eye Condition The Veteran claims service connection for a left eye condition resulting from an injury sustained in a motor vehicle accident during active service. For the following reasons, the Board finds that service connection is not established. The service treatment records show that in October 1969 the Veteran was the driver in a motor vehicle accident, which resulted in an injury to his left eye, among other injuries. He was hospitalized for his injuries, and diagnosed, in part, with traumatic optic atrophy of the left eye. The October 1969 hospitalization narrative summary states that prior to the accident, he had consumed a large amount of alcoholic beverages. It was noted that in the emergency room he was very agitated, abusive, and using profane language; it was felt by the admitting doctor that the Veteran was acutely intoxicated. On examination, he was markedly agitated, combative, and disoriented. He had the odor of alcohol on his breath. The service treatment records and service personnel records do not contain an official determination as to whether the Veteran’s automobile accident and resultant left eye injury was the product of willful misconduct. A service record states: “Line of duty, misconduct status undetermined.” In a February 1993 statement, the Veteran wrote that he received a letter signed by an Admiral Dare stating that there were no misconduct charges in his case, and that the injury was in line of duty. He further wrote in the same statement that he “had been drinking heavily” at the time he had the accident. In an October 2020 statement, the Veteran wrote that he had been drinking the night of the accident, and had been ordered by his commanding officer to take the jeep and pick up some petty officers at a ball field. He stated that he took the jeep, and cannot remember what occurred after that, as “it’s a blank.” He wrote that he woke up several days later from a coma. To establish entitlement to service connected compensation, a disease or injury must have been incurred or aggravated in line of duty. 38 U.S.C. §§ 1110, 1131. The statute provides that no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. Id. VA regulation provides that 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 alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(d). The Board finds that the Veteran’s left eye injury sustained in the motor vehicle accident was the result of the abuse of alcohol, and therefore not incurred in line of duty. See id. As noted, his service department records do not contain a formal finding to the contrary. Although the Veteran may not have had “misconduct charges” brought against him, as he wrote in the February 1993 statement, that does not alter the Board’s finding that the motor vehicle accident was caused by the abuse of alcohol. The Veteran acknowledges that he had been “drinking heavily” prior to the accident, and the October 1969 hospitalization summary states that he had consumed a large amount of alcoholic beverages, and was acutely intoxicated. With regard to the Veteran’s statement that he had been ordered to drive the jeep that night by his commanding officer, that statement alone does not support the claim. He remains responsible for his decision, even if he had been so ordered. In the alternative, the Board cannot rely on the Veteran’s unsupported statement, as he may have misremembered, misconstrued, or misrepresented what occurred. Contemporaneous evidence has greater probative value than history as reported by the claimant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Significantly, in this regard, a service record states that the Veteran was the “[a]lleged unauthorized driver of [a] government jeep involved in an overturning accident of the vehicle[.]” That record indicates that the Veteran drove the jeep unauthorized, rather than on orders from his superior, and is more probative than the statements submitted by him many years later in support of a claim for benefits. See id. The record does not indicate possible alternative causes of the accident, such as the fault of another driver. Given the fact that the Veteran was “acutely intoxicated” when the accident occurred, the Board finds that the accident proximately resulted from his abuse of alcohol. (Continued on next page)   As the Veteran’s left eye injury resulted from the abuse of alcohol, such injury was not incurred in line of duty; consequently, the criteria for service connection are not satisfied. See 38 U.S.C. § 1110; 38 C.F.R. § 3.301(d). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.