Citation Nr: 21041723 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-59 258 DATE: July 10, 2021 ORDER Entitlement to service connection for residuals of an in-service traumatic brain injury (TBI) is granted. FINDINGS OF FACT 1. In October 2015, an Investigative Officer from the Department of the Air Force determined that the head injuries incurred by the Veteran on July 3, 2015, were the result of willful misconduct due to alcohol intoxication, and thus, not in the line of duty. 2. The October 2015 Line of Duty Determination that the Veteran's head injuries were not in the line of duty is patently inconsistent with the facts and the requirements of laws administered by VA. 3. The most probative evidence reflects that the Veteran incurred residuals of a TBI during active duty. CONCLUSION OF LAW The criteria to establish service connection for residuals of a TBI are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 2009 to November 2015. This matter comes to the Board of Veterans' Appeals (Board) from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In May 2021, the Veteran and his wife testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the May 2021 hearing is associated with the file. 1. Entitlement to service connection for residuals of an in-service TBI is granted. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Injuries incurred during active service are presumed to be incurred in the line of duty. 38 U.S.C. § 105(a); see 38 C.F.R. §§ 3.1(m), 3.301(a). But this presumption can be rebutted if the injury was caused by the veteran's own willful misconduct or abuse of alcohol or drugs. See 38 U.S.C. §§ 105(a), 1110; Holton, 557 F.3d at 1367. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n), (n)(1). However, mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n)(2). Furthermore, willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n)(3). The simple drinking of alcoholic beverage is not of itself willful misconduct, but 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. 38 C.F.R. § 3.301(c)(2). A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m). Likewise, 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. 38 C.F.R. § 3.1(n). When the evidence of record includes service department findings, it is error for the Board to make its own findings of facts of line of duty and willful misconduct without addressing the service department findings before it. Crediford v. Shulkin, 877 F.3d 1040, 1046-47 (Fed. Cir. 2017). "The regulations recognize that the Service Department is in the best position to assess willful misconduct and line of duty actions of its Service." Id. (citing United States v. Yellow Cab Co., 338 U.S. 338, 341 (1949)). Analysis The Veteran contends that he incurred a TBI during active duty, resulting from a head injury sustained when while attempting to exit a moving car. The most probative evidence of record bolsters these assertions; however, the crux of the Veteran's appeal is whether the in-service injury resulting in his current disability is due to his own willful misconduct, to include his consumption of alcohol to the point of intoxication. Unfortunately, while the Veteran has provided details concerning the circumstances surrounding his in-service head injury, he has no memory of incurring the injury, to include the possible cause(s) of such. Accordingly, the Board must attempt to reconstruct this incident based on the evidence of record, which includes records associated with the Veteran's service treatment records, service personnel records, his retrospective statements and testimony, and a Line of Duty Investigation and Determination by the Department of the Air Force. On July 2, 2015, the Veteran was "picked up" at his home by a fellow soldier, J.L., who had agreed to be the designated driver for the evening. The Veteran and J.L. ate dinner at a restaurant and later drove to a night club to watch a live band perform. While the Veteran testified at the May 2021 Board hearing that he imbibed one alcoholic drink at each establishment (two drinks total), J.L.'s sworn statement to the investigating Air Force officer reflects that he did not recall either party drinking alcohol during this outing. In the early-morning hours of July 3, 2015, J.L. and the Veteran left the night club with the former driving the vehicle. They were accompanied by two females who sat in the back seat; however, the names and whereabouts of these parties are not of record, as they did not participate in the Air Force's investigation or the Veteran's VA claim/appeal process. As J.L. slowed the car to 1 5 miles-per-hour at the front curb of the Veteran's house, the Veteran exited the vehicle; however, the manner in which he did so is unknown, as the Veteran has no memory of such and J.L. did not witness the incident due to being focused on maneuvering the car near the curb. Noting that the Veteran had departed the automobile, J.L. parked the car and exited the vehicle to find the Veteran laying on the ground with slight abrasions on his arms and knees. The Veteran's wife exited the house and assisted J.L. in helping the Veteran off the ground into his home. The Veteran's wife and J.L. did not see any indication of a physical injury to the Veteran's head at that time. While the Veteran's wife helped the Veteran prepare to go to sleep, J.L. got back into his car with the two unknown female passengers and left the Veteran's neighborhood. On July 4, 2015, the Veteran's wife called the paramedics to their home on two occasions, reporting that the Veteran was "acting weird." Although the paramedics initially chose to leave the Veteran at his home without medical assistance, he was taken to the hospital upon their second trip to the house. Upon admission to the hospital, the Veteran reported "experiencing nausea and vomiting since incurring the head injury" in the early-morning hours of July 3, 2015. The Veteran reported that he consumed alcohol on a daily basis and "a history of alcohol intoxication" was noted; however, there is nothing in the hospital admission report showing that the Veteran had been drinking or was intoxicated at the time of his head injury or upon admission to the hospital. Testing revealed that the Veteran suffered bilateral cerebral contusions, fractures of several bones forming the skull, and subcranial hemorrhaging, as a result of "a fall from" or "jumping from" a moving vehicle. While the Veteran's condition improved over a 10-day period of hospitalization, the Department of the Air Force commenced a Line of Duty Determination. Upon review of the Veteran's hospital records, an Air Force physician opined on July 15, 2015, that the Veteran was "not mentally responsible" for his injuries because he was "under the influence of alcohol" when he was first treated for his injuries (on July 4, 2015), and thus, the injury was not incurred in the line of duty due to the Veteran's willful misconduct. This determination was forwarded to the Veteran's unit, and after subsequent concurrences of these findings, a formal Line of Duty Investigation was launched by the Department of the Air Force on September 15, 2015, and the case was transferred to an Investigating Officer. The Investigating Officer obtained sworn statements from J.L. and D.W., a fellow soldier who was not present with the Veteran or J.L. on the night of July 2, 2015, or at the time of the Veteran's head injury on July 3, 2015. The Veteran refused to participate in the investigation. The sworn statement of J.L. reflected the timeline of the events of July 2-3, 2015, as recounted above. Pertinently, the statement of D.W. reflects that J.L. conveyed to him on approximately July 17, 2015, that the Veteran had been drinking on the night of July 2, 2015; however, the quantity of alcohol imbibed was not disclosed. Ultimately, the Air Force's Investigating Officer concluded in an October 2015 report that the Veteran was "under the influence of alcohol" when he "fell from a moving vehicle," and thus, the September 2015 line of duty determination was correct. In a September 2016 administrative decision, the AOJ determined that the Veteran's head injuries incurred on July 3, 2015, were not in the line of duty due to his own willful misconduct (namely, his consumption of alcohol) being the proximate cause of the such. The AOJ's adjudication and readjudication of the Veteran's claim and resulting appeal focused on this finding without reaching the merits of the case. Initially, the Board observes that the conclusion reached by the AOJ in the September 2016 administrative decision is not binding upon the Board; however, the Air Force's Line of Duty Determination is binding on VA unless, after a review of the totality of the record, it is found patently inconsistent with the facts of the case and/or the requirements of laws administered by VA. To this point, the Board finds that the Air Force's conclusion that the Veteran's head injuries incurred on July 3, 2015, were proximately caused by his consumption of alcohol is inconsistent with the facts of the case. Although the Veteran admitted to imbibing two alcoholic drinks in the approximately 6-hour period prior to injuring his head while attempting to exit J.L.'s car, there is nothing in the record showing that the effects of these two drinks resulted in intoxication and/or his head injuries. Further, the Air Force's initial Line of Duty determination is flawed to the extent that it appears to be based on a finding that the Veteran was "under the influence of alcohol" when initially treated for his injuries. Even if the July 4, 2015, hospital admission report reflected that the Veteran was inebriated upon admission, which it does not, the dispositive issue in the current case is the state of the Veteran's sobriety at the time of the injury not at the time of initial treatment. This point is critical in light of the fact that the Veteran's head injury was incurred more than 24 hours prior to his hospital admission. In light of above, the Board therefore concludes that the evidence for review does not support the Air Force's finding that the Veteran's head injuries incurred on July 3, 2015, were the result of his own willful misconduct due to voluntary alcohol intoxication. Armed with the above finding, the Board observes that the Veteran's head injuries may still be determined to be the result of his own willful misconduct, and thus, not incurred in the line of duty, if the evidence shows that the manner in which he exited the moving vehicle involved "deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." To this point, of the four witnesses to the Veteran's injury, two are unknown, J.L. did not see the Veteran exit the vehicle, and the Veteran has no memory of the incident to the effects of his injuries. Further complicating matters, the record is wholly inconsistent in describing the Veteran's exit from the car. While the hospital admission note states that he "jumped" from the moving vehicle, the Air Force's Line of Duty Determination used the verbiage "stepped from," "fell from," and "left" to describe how the Veteran exited the vehicle. Given the lack of clear and reliable evidence concerning this point, the Board cannot conclude that the manner of the Veteran's exit from J.L.'s vehicle constituted willful misconduct. Accordingly, the Board finds that the head injury sustained by the Veteran on July 3, 2015, was incurred in the line of duty, and as the record clearly reflects that his current TBI residuals are the result of this head injury, the criteria to establish service connection for this disability are met. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.