Citation Nr: 21022486 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-10 008 DATE: April 15, 2021 ORDER Entitlement to service connection for a left hip disability is denied. FINDING OF FACT The Veteran’s current left hip disability is the result of his own willful misconduct in service. CONCLUSION OF LAW The criteria for service connection for a left hip disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.1, 3.301. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1978 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran appeared at a hearing before the undersigned in June 2014. A transcript of the hearing is of record. In December 2017, the Board denied service connection for a left hip disability, finding the claimed disability was the result of the Veteran’s own willful misconduct in service. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court issued a memorandum decision that set aside the Board’s December 2017 decision, finding the Board provided an inadequate statement of reasons and basis for its decision to the extent that it failed to adequately explain how either the Veteran’s reckless driving charge or resulting two days of jail time are relevant to or probative of the question whether he was driving while intoxicated at the time of the motor vehicle accident that resulted in the claimed disability. The Court also noted the Board failed to adequately explain how the Veteran’s testimony that he began drinking beer some eight hours before the accident means he drank beer continually for eight hours until the accident or speaks to his level of intoxication at the time of the accident and how the Veteran’s drinking of six to eight beers up to the time just prior to the accident is relevant or probative of the question whether he was driving while intoxicated. In February 2020, the Board remanded the issue on appeal for a medical opinion to guide its analysis of the material question of the Veteran’s level of intoxication at the time of the accident. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). A VA examiner provided the requested opinion in March 2020 The March 2020 VA examiner provided an adequate rationale to support his conclusion regarding the Veteran’s level of intoxication at the time of the accident after considering an accurate factual history of the circumstances present in this case. In August 2020, the Board again remanded this matter to ensure due process because the June 2020 supplemental statement case (SSOC) the Agency of Original Jurisdiction (AOJ) sent the Veteran was returned undeliverable. The AOJ resent the SSOC in September 2020 and returned the matter to the Board after issuing an updated SSOC in October 2020. The record clearly establishes the Veteran, and his representative, have reviewed the SSOCs, as the Veteran shortly thereafter requested a copy of the March 2020 VA examiner’s report and then submitted additional argument to support his contentions on appeal. As a result, the Board finds there has been substantial compliance with its prior remand directives, rendering this case ready for further appellate review. Analysis VA cannot pay compensation for a disability that is the result of the claimant’s own willful misconduct in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.301. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or a wanton and reckless disregard of its probable consequences. Id. 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 the disability or death, the disability or death will be considered the result of the person’s willful misconduct. Id. Here, the record reflects the Veteran’s status post fracture dislocation of left hip was incurred in a January 1982 motor vehicle accident (MVA). The Veteran was the driver during this accident. Although there is not a line of duty determination included in the Veteran’s service personnel records regarding the left hip injury, records related to a Medical Evaluation Board reveal the Veteran admitted to drinking at least six to eight beers in the period leading up to the accident and smelled of a heavy odor of alcohol upon his admission to Bayside Hospital in Virginia Beach, Virginia, following the accident. During the June 2014 hearing before the undersigned, the Veteran testified he began drinking beer approximately eight hours prior to the accident. The Veteran further testified he was charged with reckless driving and spent two days in jail following accident. The Board has directed the AOJ to obtain police records related to the accident in efforts to rule out alcohol as a causative factor, but it has been determined police records are unavailable. Based on the evidence of record, the Board finds the Veteran’s status post fracture dislocation of left hip is the result of his own willful misconduct in service. The record reflects the Veteran was transferred from Bayside Hospital to Naval Regional Medical Center, Portsmouth, Virginia, after being stabilized following the accident. A January 1982 report from Naval Regional Medical Center notes a diagnosis of acute alcohol intoxication and states the Veteran’s alcohol level was 226. This matter was briefed before the Court with the Veteran being provided notice of the following universal principles that are not subject to reasonable dispute. See Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012). Blood Alcohol Content (BAC) is the concentration of alcohol in one’s bloodstream, expressed as a percentage. Blood Alcohol Content, Black’s Law Dictionary (10th ed. 2014). Virginia defines intoxication for purposes of defining the crime of driving a motor vehicle while intoxicated as 0.08% or 80 mg/dl blood alcohol content. Va. Code Ann. § 18.2-266. BAC may be measured in several ways, including mg/dl (milligrams per deciliter), which provides the percentage of blood alcohol concentration when divided by 1000. See Ethan Cowan, Ethanol Intoxication in Adults, UpToDate May 8, 2018, Topic 333 Version 19.0, available at https://www.uptodate.com/contents/ethanol-intoxication-in-adults. Based on this, 224 mg/dl would be approximately 0.22% BAC. The Board finds that a BAC of .22% is indicative of intoxication at the time of the MVA, especially considering that Virginia defines intoxication for purposes of defining the crime of driving a motor vehicle while intoxicated as .08% BAC or higher. This finding is consistent with the January 1982 report from Naval Regional Medical Center where the Veteran was treated following the MVA which diagnosed the Veteran with acute alcohol intoxication at that time. The March 2020 VA examiner also indicated that the evidence shows the Veteran would have had a BAC of .08% or higher based on his testimony that he drank six to eight beers beginning approximately eight hours prior to the accident when considering other factors such as the Veteran’s body weight. As noted above, .08% BAC is considered intoxication for purposes of driving a motor vehicle while intoxicated in Virginia. The examiner further noted that even a BAC of .05% is shown to have 5 times the likely MVA risk. The examiner also noted that the emergency room personnel noted a heavy alcohol odor on the Veteran at the time he was treated following the MVA. The Court has noted the Board previously failed to address how the Veteran’s testimony during the June 2014 hearing supports a finding that he continually drank for eight hours before the accident in question. The Board did not and does not find that the Veteran drank continually for eight hours prior to the accident. Nonetheless, the Veteran testified he began drinking approximately eight hours before the accident and that in this eight-hour time period prior to the accident, he drank six to eight beers. He did not report that he drank six to eight beers immediately upon the commencement of drinking; rather, his prior statements suggest he drank these six to eight beers over a period of approximately eight hours prior to the accident. This history is consistent with his BAC level at the time of treatment following the accident and his diagnosis of acute alcohol intoxication at the time of treatment following the accident. The Veteran has asserted the fact that he was charged with reckless driving following the accident supports a finding that he was not intoxicated at the time of the accident, citing the Virginia reckless driving law. See Va. Code Ann § 46.2-852. Yet, there is no reason to believe that criminal guilt under this law would exculpate him from a finding of fact that he was intoxicated during the accident. Under the language of Va. Code Ann § 46.2-852, a defendant could be intoxicated and also charged with reckless driving. Id. The Veteran has not established how a finding or admission of guilt under Va. Code Ann § 46.2-852 would show he was not intoxicated at the time of the accident. Indeed, a determination by a prosecutor in the state of Virginia as to what charges to bring is not binding on the Board, whether as a matter of fact or law. See Burger v. Brown, 5 Vet. App. 340, 342 (1993); see also 38 U.S.C. § 7104(c). Thus, the Board finds the fact the Veteran was charged with reckless driving does not indicate he was not intoxicated at the time of the accident. Particularly when coupled with the fact that the medical personnel treating the Veteran after the accident noted a heavy odor of alcohol on the Veteran and diagnosed him with acute alcohol intoxication at that time and the fact that the competent medical evidence of record reflects that the Veteran’s report of alcohol consumption on the day of the accident would be consistent with a BAC of at least .08% at the time of the accident. The Veteran has also asserted other factors such as the time of day, the weather, and the speed of the other vehicle caused the crash that resulted in his left hip disability; however, the Board finds the Veteran would most likely have been able to navigate these conditions, which affect drivers on a daily basis, but for the fact that he was intoxicated at the time of the accident. In fact, as noted above, the March 2020 VA examiner indicated that a BAC of only .05% results in motor vehicle accidents being five times more likely. As a result, the Board finds the Veteran’s decision to drive an automobile after drinking to intoxication was the proximate cause of his left disability. In sum, the preponderance of evidence establishes the Veteran’s current left hip disability is the result of his own willful misconduct in service. See Daniels v. Brown, 9 Vet. App. 348, 351 (1996). The weight of the evidence supports a finding that the Veteran was intoxicated at the time of the January 1982 motor vehicle accident that resulted in his left hip disability. The record also supports a finding that the Veteran’s intoxication was the proximate cause of his disability. Since the preponderance of evidence establishes the Veteran’s current left hip disability is the result of his own willful misconduct in service, the benefit-of-the-doubt doctrine does not apply in this case. Accordingly, service connection for a left hip disability must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.