Citation Nr: 21040940 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 12-20 971 DATE: July 7, 2021 ORDER 1. New and material evidence having been submitted, the claim of service connection for a traumatic brain injury (TBI) is reopened. 2. Service connection for a traumatic brain injury (TBI) is denied. 3. Effective August 31, 2010, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's TBI was caused by a December 1991 motor vehicle accident (MVA). 2. The Veteran's December 1991 MVA was the result of willful misconduct. 3. The Veteran's service-connected disabilities have prevented him from securing and following substantially gainful employment since August 31, 2010. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 105, 1110, 1131, 1154, 5107; 38 C.F.R. §§ 105, 3.1, 3.102, 3.301, 3.303. 2. Since August 31, 2010, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1989 to April 1996. The case is on appeal from May 2011 and November 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at hearings held in May 2017 and September 2018. In a February 2019 decision, the Board denied the Veteran's motion alleging clear and unmistakable error (CUE) in an October 1997 administrative decision, finding that a December 1991 MVA was not incurred in the line of duty. The Veteran appealed the decision to the United States Court of Appeal for Veterans Claims (Court) and, in March 2020, the parties to this appeal entered into a Joint Motion for Partial Remand (Joint Motion), in which the parties agreed that the portion of the Board's decision denying CUE in the October 1997 administrative decision should be vacated because such claim had not been adjudicated by the RO in the first instance. The Court granted the parties' Joint Motion in an Order issued later in April 2020. In a July 2020 decision, the Board granted service connection for an acquired psychiatric disability and a 10 percent rating for polycystic liver disease and remanded a claim of service connection for hearing loss as well as the claims listed on the title page. In a March 2021 rating decision, the RO granted service connection for hearing loss effective July 16, 2019. As the hearing loss claim has been granted in full, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In an October 2020 rating decision, the RO found that the October 1997 administrative decision was not the product of CUE. In a February 2021 decision, the Board dismissed the CUE claim because, as a timely notice of disagreement (NOD) has not yet been filed, the Board lacks jurisdiction over it. I. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a TBI. By an October 1997 administrative decision, a claim of service connection for a TBI was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. He filed an NOD in October 1997. The RO denied the claim agan in a July 1999 statement of the case (SOC). An appeal was not perfected and no new evidence was received by VA within one year of the issuance of the SOC. Thereafter, in September 2006, the Veteran requested reopening of service connection for a TBI. By a March 2007 rating decision, the RO denied reopening of the claim. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. The Veteran again requested reopening of service connection for a TBI in March 2009. By a November 2009 rating decision, the RO again denied reopening of the claim. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. No new evidence or NOD was received by VA within one year of the issuance of the November 2009 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection for a TBI is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also December 2011 NOD; July 2016 Veteran Statement, May 2017 Board Hearing Testimony; September 2018 Representative Statement. II. Service Connection 2. Service connection for a TBI. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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 present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to the second element, veterans are entitled to a presumption that injuries incurred during active service were "incurred in the line of duty" and not the result of the veteran's willful misconduct. 38 U.S.C. § 105(a) ("An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in [the] line of duty and not the result of the veteran's own misconduct..."); Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("By its plain terms, section 105(a) creates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by the veteran's misconduct."). This presumption may be rebutted if the government demonstrates by a preponderance of the evidence that the in-service injury was caused by or resulted from willful misconduct or by abuse of alcohol or drugs. Holton, 557 F.3d at 1367 (Fed. Cir. 2009); Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005) (supporting preponderance of the evidence as the proper evidentiary standard to rebut the line-of-duty presumption); Myore v. Brown, 9 Vet. App. 498, 503 (1996) (remanding the Board's denial of benefits based on willful misconduct finding where "[t]he Board did not support its denial in this case by a finding that willful misconduct, under 38 U.S.C. § 105(a) and 38 C.F.R. § 3.1(n)(1), was shown by a preponderance of the evidence"). The burden rests on the government to show that an act constitutes willful misconduct, defined as "an act involving conscious wrongdoing or known prohibited action" that "involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. § 3.1(n)(1); see Holton, 557 F.3d at 1367 ("[I]f the veteran establishes that he was injured or contracted a disease during active service and the government does not show that the injury or disease resulted from willful misconduct, the veteran has satisfied the second of the three elements [for service connection]..."). The appellant does not bear the burden of proving that his injury was not the result of willful misconduct; rather, VA bears the burden of proving that it was. See Holton, 557 F.3d at 1367. VA must set forth evidence that shows by a preponderance that the in-service injury was proximately caused by an act of willful misconduct by the veteran. Thomas, 423 F.3d at 1283; Myore, 9 Vet. App. at 503. "In line of duty" means an injury or disease incurred or aggravated during a period of active military service unless such injury or disease was the result of the veteran's own willful misconduct. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was (1) avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty; (2) confined under a sentence of court-martial involving an unremitted dishonorable discharge; or (3) confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. 38 C.F.R. § 3.1(m). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. 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. In addition, willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. A service department finding that injury, disease, or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. 38 U.S.C. § 1521; 38 C.F.R. § 3.1(n). 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. 38 U.S.C. § 105(a) establishes a presumption in favor of finding of line of duty. Alcohol consumption or alcohol abuse alone does not necessarily constitute willful misconduct. 38 C.F.R. § 3.301(c)(2) ("The simple drinking of alcoholic beverage is not of itself willful misconduct."); see Martin v. McDonald, 761 F.3d 1366, 1371 (Fed. Cir. 2014) ("Congress has taken action indicating that alcohol abuse and willful misconduct... are not coextensive."). Further, "[w]illful misconduct will not be determinative unless it is the proximate cause of injury, disease or death." 38 C.F.R. § 3.1(n)(3); see 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 or death, the disability or death will be considered the result of the person's willful misconduct."). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Factual Summary The Veteran is seeking service connection for a TBI caused by a December 1991 MVA. In a December 2011 statement, he claimed that the TBI was not a result of misconduct, the Army made a finding that it was in the line of duty, and that there were no criminal citations associated with the MVA. During the May 2017 Board hearing, the Veteran stated that he knew he had been drinking the night of the MVA because he cannot remember the night. He also stated that he was at a high school football game where alcohol was prohibited. He further stated that "prior to that night, I had never gotten behind the wheel of a car with any alcohol in my system." He then acknowledged that driving while impaired by alcohol or drugs results in risking serious harm to others and stated, in regard to driving after consuming any alcohol, "I don't play that." He also acknowledged that he was the driver during the MVA as far as he is aware. He claimed that he was possibly given alcohol or drugs without his knowledge prior to the MVA. During the September 2018 Board hearing, the Veteran stated that his blood alcohol concentration (BAC) on the night of the accident was found to be 0.096 and that the relevant law prohibited driving with a BAC of 0.10 or higher in 1991. The Veteran's service treatment records (STRs) show that he was treated for a brain injury following a MVA on December 6, 1991. The treatment records report that the Veteran was the driver and was traveling 70 miles per hour at the time of the accident. The records also report that he had a BAC of 0.096 and tested positive for benzodiazepine and opiates. In January 1992, imaging of the Veteran's brain was found to show a chronic subdural hematoma. The Veteran's service personnel records (SPRs) show that he was born in March 1971 and was 20 years old on the day of the accident. The SPRs also show that he reported being arrested, cited, charged, or held by law enforcement for speeding and careless and reckless driving on December 6, 1991. The SPRs further show that the Veteran received good reviews during his time in service subsequent to the accident and was awarded a Good Conduct Medal in June 1993 for his service from June 1989 to June 1993. The Veteran's SPRs do not include a line of duty determination in regard to the MVA. In October 1997 administrative decision, the RO found that the Veteran's disabilities claimed as a result of the MVA were the result of his own willful misconduct and were not incurred in the line of duty. The RO noted the Veteran's speed at the time of the accident, BAC of 0.096, and positive test for benzodiazepine and opiates. The RO noted that the Veteran's BAC at the time of the MVA exceeded the standards used by several federal agencies, including the Army, Navy, and Air Force. During VA treatment in October 2014, the Veteran reported drinking alcohol four times per week at the age of 19 and drinking 80 to 120 ounces of beer four to five times per week at the age of 20. He also reported having legal problems due to driving while intoxicated in 2000 and again in 2003. In June 2016, the RO made a finding that the Veteran's SPRs do not include a line of duty determination for the accident. In a July 2016 statement, the Veteran's representative quoted guidance from a legal assistance office located at an Army base that reported a line of duty investigation is necessary when a driver involved in an accident is intoxicated. The representative also quoted the article reporting that a line of duty investigation is generally conducted whenever a service member is injured under unusual circumstances and that soldiers must consider the repercussions of engaging in very dangerous activities. The representative then stated that the Veteran's decision to drive a privately owned vehicle is considered a normal activity. He also stated that the absence of a line of duty determination in the file means that the Army made an implicit line of duty finding. In May 2017, the Veteran's representative submitted additional evidence. In a statement, the Veteran claimed that a line of duty report found he was not guilty of willful misconduct after the MVA. The representative also submitted a letter from a clerk at the county where the MVA took place. The clerk reported that the Veteran was charged with driving while impaired and reckless driving to endanger. The clerk also reported that the driving while impaired charge was dismissed and that he pled guilty to reckless driving to endanger. The clerk further reported that the Veteran was given a 60-day suspended sentence and two years unsupervised probation. The clerk also explained that he had a civil revocation of his driving license which is required for a driving while impaired charge that he resolved by paying $100. In a July 2018 supplemental statement of the case (SSOC), the RO reopened the issue of service connection for a TBI and found that service connection is not warranted because the December 1991 TBI was the result of willful misconduct. In a November 2017 VA form, the Veteran reported that he was driving his own car at the time of the accident and that he has no memory of what happened. He claimed that the accident was determined to be in the line of duty and that all charges were dismissed. He also claimed that alcoholic intoxicants and drugs of any kind were not involved in the accident. In a January 2018 statement, the Veteran reported that his BAC at the time of the accident was below the legal limit, that no witnesses were present to document the vehicle's speed at the time of accident, that he had unknowingly had polycystic kidney disease at the time of the accident that affected how his body processed alcohol, that the driving while impaired charge was dismissed, and that he received a Good Conduct Medal for his service period encompassing the MVA. In April 2018 VA memorandum, the RO reviewed the October 1997 administrative decision. The RO noted that the decision contains a typo indicating a BAC of 0.96 rather than 0.096 at the time of the accident. The RO reported that VA guidelines state that VA should accept service department line of duty determinations as conclusive evidence, but does not state that a lack of a line of duty determination means that an accident is presumed to have been within the line of duty. The RO also reported that when the applicable service department has not made a line of duty determination, VA must make its own. The RO found that there was no clear and unmistakable error in the October 1997 administrative decision. In May 2018, the Veteran submitted an article by the National Highway Traffic Safety Administration (NHTSA) regarding research on driving under the influence of alcohol. The article shows that the state where the Veteran's accident occurred lowered the legal limit for BAC while driving to 0.08 in 1993. The article reports that a 170-pound man would have to consume 48 ounces of beer within an hour on an empty stomach to reach 0.08 BAC. The article also reports that studies show virtually all drivers are substantially impaired at a BAC of 0.08 and that the risk of being in a crash rises very rapidly after a driver reaches or exceeds 0.08 BAC. Later in May 2018, the Veteran submitted an article from a health care facility associated with Stanford University. The article includes a list of medications used during emergency treatment of patients with a TBI. The Veteran also submitted a statement in which he reports that he tested positive for benzodiazepine and opiates because of medication used to treat him following the accident. In a September 2018 statement, the Veteran's representative argued that the Veteran's statements are competent and credible as to having no knowledge of excessive drinking at the time of the accident. The representative also argued that the MVA could have been due to the Veteran's irresponsibility in not safeguarding his person and that he was negligent in not ensuring that he drove at a safe speed for the roads and conditions, but that does not show a conscious, deliberate, and intentional act of wrongdoing on the Veteran's part or wanton or reckless disregard for the consequences. The representative also cited another BVA decision that found a different veteran did not commit willful misconduct in being shot in the leg when a car passenger accidently shot him in the leg with a gun the veteran had left in the vehicle's glove box. The representative further argued that the accident was found to be in the line of duty because the Army paid the Veteran's civilian medical bills resulting from the accident. In a May 2020 statement, the representative argued that simple drinking of alcohol does not constitute misconduct. In a June 2020 correspondence, the representative argued that the RO had not complied with all Board remand directives but did not offer any support for this assertion. The representative stated that the Veteran was not familiar with the highway where the MVA occurred. The representative also stated that VA may consider state law in interpreting the applicable definition of willful misconduct. Analysis The Board finds that the Veteran sustained a TBI during the in-service MVA in December 1991. The Board also finds that the preponderance of the evidence shows that the MVA was the result of willful misconduct. In reaching this determination, the Board notes that the Veteran has not disputed he was driving the vehicle at the time of the accident and pled guilty to reckless driving to endanger at the time of the MVA. Reckless driving was defined in the relevant jurisdiction at the time of the MVA as any person who (1) drives carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others or operates a motor vehicle without caution and circumspection and at a speed or (2) in a manner so as to endanger or be likely to endanger any person or property. See N.C. Gen. Stat. § 20-140. In pleading guilty to this crime, the Veteran acknowledged that he committed wrongdoing at the time of the MVA that created the risk of harm to oneself and the safety of others. In addition, during the May 2017 Board hearing, the Veteran reported that he never drove after drinking any amount of alcohol prior to the MVA because driving after drinking alcohol causes a risk of harm to oneself and to other vehicles and their passengers. This shows that the Veteran's decisions to consume alcohol before driving and drive recklessly at the time of the MVA constitute a conscious wrongdoing with reckless disregard for its probable consequence, negating the statutory presumption that the TBI incurred in the line of duty. See 38 C.F.R. § 3.1(n); Daniels, 9 Vet. App. at 351. Although a mere technical violation of police regulations or ordinances will not per se constitute willful misconduct, the crime of reckless driving is not a mere technical violation. In this regard, the statute the Veteran pled guilty to makes it clear that reckless driving is a very dangerous crime that creates a serious risk of harm to other people. This is true in the Veteran's case where the accident scene indicates that he was traveling at a high rate of speed, estimated at 70 miles per hour, on a road that was unfamiliar to him. Furthermore, MVAs kill and seriously injure thousands of Americans each year. The Veteran has repeatedly argued that the MVA did not constitute willful misconduct because his BAC was not above the legal limit at the time of the accident. However, the facts of the MVA and the Veteran's admitted recklessness at the time of the accident alone indicate that the resulting MVA was due to willful misconduct. The Board also finds that, to the extent that the Veteran consumed alcohol excessively such that his reckless driving could not be considered deliberate or intentional wrongdoing, the excess consumption proximately and immediately caused the TBI. As explained above, the Veteran has acknowledged that he knew prior to the MVA that driving after consuming any amount of alcohol creates a risk of causing disability or death of oneself and others. 38 C.F.R. § 3.1(n); Daniels, 9 Vet. App. at 351. In addition, the NHTSA research submitted by the Veteran indicates that the risk of being in a MVA rises very rapidly after a driver reaches or exceeds 0.08 BAC. In this case, the Veteran was found to have a BAC of 0.096 after the MVA. While the Veteran argues that his BAC was lower than the legal limit, if his consumption prior to the MVA resulted in the inability to act deliberately or intentionally then such consumption proximately and immediately led to the reckless driving that resulted in the TBI. 38 C.F.R. § 3.301; see also Martin, 761 F.3d at 1371 ("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."). He has argued that he had an undiagnosed medical condition affects his ability to process alcohol, but this does not negate his knowledge of the dangers of driving after consuming alcohol or obviate the harm caused by such consumption prior to driving. In this regard, the Veteran has reported drinking large of amounts of alcohol on a regular basis in the years prior to the MVA. Therefore, he would have known how much alcohol he could consume safely based on his body's ability to process alcohol prior to the day of the MVA. The Veteran has raised several arguments as to why his actions at the time of the MVA do not constitute willful misconduct. He argues that his receipt of a Good Conduct Medal for the period of service encompassing the MVA and the Army's payment of private medical expenses related to the MVA show that the Army made a finding that the MVA was in the line of duty. Alternatively, the Veteran's representative submitted evidence that the Army performs a line of duty investigation whenever a soldier is injured under unusual circumstances. The representative also argues that the absence of a line of duty determination means the Army made an implicit finding that the MVA was in the line of duty. He also stated that the absence of a line of duty determination in the file means that the Army made an implicit line of duty finding. However, the Veteran's complete SPRs have been associated with the file and no line of duty determination is present. Here, the presumption of regularity applies to the association of a line of duty determination to the Veteran's SPRs. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926))." Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by "clear evidence" that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). The Veteran has not shown by clear evidence that the Army failed to associate a determination with the SPRs. At the time of the MVA, the Veteran was driving his own vehicle after a high school football game and he has not indicated that he was acting on behalf of the Army at such time. Unfortunately, because MVAs are very common and no government property was damaged, the most likely explanation is that a line of duty determination was never made. In addition, in the absence of a line of duty determination, VA regulations state that one should be made prior to granting benefits. The Board does find the Veteran's reports that he did not consume benzodiazepine and opiates prior to the MVA to be credible. In this regard, he submitted an article from a health care facility showing that these substances could have been introduced into his body during medical treatment after the MVA. He was not charged with any offenses related to drug use at the time of the accident and there is no evidence of record that the Veteran used illegal drugs or prescription drugs without a prescription prior to the MVA. However, the Board does not find the Veteran's other assertions regarding his consumption of alcohol on the day of the MVA and disputes as to the vehicle's rate of speed to be competent or credible. In this regard, the Veteran has reported having no memory of the hours prior to the MVA or the MVA itself. Therefore, he is not competent to report whether he consumed alcohol or to dispute the estimated speed of the vehicle at the time of the accident. In addition, during VA treatment in October 2014, he reported drinking alcohol four times a week at the age of 19 and drinking 80 to 120 ounces of beer four to five times a week at the age of 20. At the time of the accident, he was 20 years old and, thus, was regularly drinking large quantities of alcohol and would have been familiar with the taste of alcohol and its effects on the nervous system. Therefore, it is not credible that he unwittingly consumed a quantity of alcohol sufficient for his BAC to be 0.096 after the MVA. In addition, he reported being at an event where alcohol was not permitted prior to the MVA and has not indicated why anyone at the event would have wanted to give him alcohol against his will. Furthermore, the Veteran made several misstatements of fact during the course of this claim. During the May 2017 Board hearing, he indicated that he would never knowingly drive after consuming alcohol, yet he stated during VA treatment in October 2017 he had legal incidents involving driving while intoxicated in 2000 and 2003. In a November 2017 VA form, he claimed that all charges related to the MVA were dismissed and that the MVA did not involve alcoholic intoxicants while the evidence of record shows that he was aware at such time that he pled guilty to reckless driving and had a BAC of 0.096 at the time of the accident. Based on the Veteran's lack of memory of the events surrounding the MVA as well as the facial implausibility and inconsistency of his statements and their inconsistency with the other evidence of record, the Board finds these arguments neither competent or credible. See Dalton, 21 Vet. App. at 38 (2007); Caluza, 7 Vet. App. at 511. The Board also notes that the Veteran submitted a Board decision where another veteran was found not to have committed willful misconduct. However, this submission does not address the specific facts of the Veteran's case. Thus, it is not evidence sufficient to independently establish that the Veteran's MVA was not the result of willful misconduct. See also 38 C.F.R. § 20.1303. In light of the forgoing evidence, the Board finds that the preponderance of the evidence shows that the Veteran's in-service TBI was the result of willful misconduct. In this regard, the Veteran deliberately drove in a reckless manner with deliberate disregard for the high probability that this could result in an injury to himself or others. To the extent that the Veteran was so intoxicated at the time that he drove recklessly, the MVA was the direct result of his deliberate choice to drink a quantity of alcohol that rendered him unqualified, physically and mentally, to drive and, therefore, such alcohol consumption was the proximate and immediate cause of the TBI. See Martin, 761 F.3d at 1371; 38 C.F.R. § 3.301. Thus, the Veteran's TBI was the result of willful misconduct. In sum, the preponderance of the evidence is against the claim for entitlement to service connection for a TBI, there is no doubt to be resolved, and service connection is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. TDIU 3. A TDIU prior to January 1, 2017. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In addition, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision in the first instance before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). For purposes of this decision, the Board uses the term "sedentary" to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). Factual History The Veteran is seeking a TDIU since August 31, 2010. In this regard, in a June 2016 claim form, he reported becoming too disabled to work on August 31, 2010 due to service-connected hypertension, kidney disease, liver disease, tinnitus, hernia, and herpes. He also reported last working fulltime on August 31, 2010 and completing high school and one year of college. The Veteran listed several employers showing employment periods lasting from a few weeks to a few months. The list indicates that he earned between $892 and $1,997 in his highest earning month at each of the employers where he worked for more than a couple weeks. Since August 31, 2010, the Veteran has had at least the following disability evaluations: 50 percent for an acquired psychiatric disorder, 40 percent for polycystic kidney disease with hypertension, 10 percent for backaches, 10 percent for tinnitus, 10 percent for post-operative residual of right great toe infection, 10 percent for headaches, 10 percent for hernia surgical scar, and non-compensable ratings for polycystic liver disease and right hernia surgical repair. Therefore, he has met the schedular requirements for a TDIU since August 31, 2010. In a May 2016 form, one of the Veteran's former employers reported that he worked as a general laborer until June 2010. The employer also erroneously reported last paying the Veteran in June 2016. In a June 2016 form, another of the Veteran's former employers reported that he last worked there as a security officer until August 31, 2010 and that he was working fulltime without missing work due to illness prior to leaving the position. Based on the Veteran's education and work history, a TDIU is warranted because the Veteran is unable to obtain and maintain employment. The Veteran's service-connected physical disabilities result in fatigue and lack of stamina that prevent him from working in jobs requiring physical labor or extended standing. In addition, since April 2010, the Veteran has been service-connected for an acquired psychiatric disorder that prevents him from transitioning to sedentary employment. In addition, his vocational rehabilitation records show that, based on the Veteran's physical limitations and educational deficits, he would experience challenges related to obtaining employment. In this regard, the vocational assessment found that the Veteran has not overcome his impairment to employability because he lacks transferable skills that would be compatible with the disability limitations he faces and are consistent with his demonstrated interests, aptitude, and abilities. Resolving reasonable doubt in the Veteran's favor, he has been prevented from securing and following substantially gainful employment as a result of the combined effects of his service-connected disabilities since August 31, 2010. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, TDIU is warranted since date. See 38 C.F.R. § 4.16(b); Wages, 27 Vet. App. at 233. The Board considers this a full grant of the benefit sought as a TDIU is granted since the date that the Veteran claims he became unable to work due to his service-connected disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.