92 Decision Citation: BVA 92-04989 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-45 214 ) DATE ) ) ) THE ISSUE Whether injuries sustained in a November 4, 1988 vehicular "accident" are due to the veteran's own willful misconduct. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from July 1981 to March 1990. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an administrative decision of the San Francisco, California Regional Office (RO) of the Department of Veterans Affairs (VA), of which the veteran was mailed notice in October 1990. His notice of disagreement was received later in October 1990, and a statement of the case was issued in May 1991. The veteran's substantive appeal was received later in May 1991. The case was received by the Board in Washington, D.C., in October 1991. It was thereupon referred to the Paralyzed Veterans of America, Inc., which has represented the veteran throughout this appeal. The representative organization furnished written argument to the Board later in October 1991. CONTENTIONS The veteran contends that the RO erred in multiple ways when it held that the automobile "accident" in which he was involved on November 4, 1988, was due to his own willful misconduct. He asserts that he has submitted evidence which proves (1) that his car left the road because it was struck by a pickup truck; (2) that the blood-alcohol content he was reported to have was 40 percent to 50 percent incorrect; (3) that his actual speed was less than the speed estimated by the police; and (4) that the Anderson, California Police Department did a poor job. He maintains that his car did not leave the road where the police determined that it did. He states that white paint left on his car door by the truck which struck his car was removed by an unknown person. He also states that the military inspector did a poor job because he accepted the police findings. The veteran asserts that the RO never informed him of the evidence used to deny his claim. It is contended that the RO failed to consider the benefit of the doubt doctrine codified in 38 U.S.C. § 5107(b) (1991) and discussed by the United States Court of Veterans Appeals in the case of Gilbert v. Derwinski. The decision by the RO is said to violate the provisions of 38 C.F.R. § 3.1(n). "Section 14.04(1)(a)" of the VA's Policy Manual M21-1 is also cited. The veteran directs attention to the evidence that a District Attorney reduced charges against him from a felony to a misdemeanor. He argues that this action demonstrates that the reported blood-alcohol content noted by a detective was among "many inaccuracies and discrepancies in his report." Opinions expressed by the veteran's probation officer are emphasized. The veteran also references line-of-duty investigations involving other servicemen which he believes are inconsistent with the line-of-duty investigation done in his case. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the credible evidence is against the claim. FINDINGS OF FACT 1. All available evidence necessary to reach an equitable decision has been obtained by the RO. 2. There is no credible evidence to support the contentions that the automobile "accident" in which the veteran was injured on November 4, 1988, was caused by collision with, or any other involvement with, another vehicle, or that it was caused by mechanical failure of the vehicle driven by the veteran. 3. There is no credible evidence to support the contention that the veteran's blood-alcohol content at the time of the "accident" was less than the level estimated by investigating police; he was clearly driving while highly intoxicated by liquor at the time the "accident" occurred. 4. The veteran's intoxication was the proximate cause of the automobile "accident" in which he was injured on November 4, 1988. CONCLUSION OF LAW The injuries sustained by the veteran in the automobile "accident" on November 4, 1988, were the result of his own willful misconduct and, therefore, were not incurred in line of duty. 38 U.S.C. §§ 105, 5107 (1991); 38 C.F.R. §§ 3.1(n), 3.301(c)(2) (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We have considered the merits of this case because we find the veteran's contentions are sufficient to constitute evidence of a "well-grounded" claim, within the meaning of 38 U.S.C. § 5107(a) (1991). That is, his contentions are not implausible, they are pertinent to the legal criteria for the benefit at issue on appeal, and he has attempted to submit documentary evidence to support them. We do not find any indication that there may exist additional evidence, not already of record, which could help furnish facts to support the veteran's claim. Consequently, the VA is not shown to have a further duty to assist the veteran with his appeal. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C. § 1131 (1991). An injury or disease incurred during service is generally regarded to be in line of duty unless it was the result of the veteran's own willful misconduct. 38 U.S.C.§ 105 (1991). 38 C.F.R. § 3.1(n) (1991) provides that willful misconduct means an act involving conscious wrongdoing or known prohibited action (malum in se or malum prohibitum). It involves deliberate or intentional wrongdoing with either 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. 38 C.F.R. § 3.301(c)(2) (1991) provides that the simple drinking of alcoholic beverage is not, of itself, to be considered willful misconduct. The deliberate drinking of a known poisonous substance, or under conditions which would raise a presumption to that effect, will be considered willful misconduct. 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. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. Paragraph 14.04 of the VA's Adjudication Procedure Manual, M21-1, contains instructions for adjudication by the RO of questions relating to willful misconduct and vicious habits. The language cited by the representative appears to be contained in Paragraph 14.04(c)(1)(a). By way of background, the reports of record indicate that the veteran's "accident" is believed to have occurred around 11:00 p.m. on November 4, 1988. A local resident came upon the "accident" scene at approximately 6:15 a.m. on November 5, 1988. Officer Webb of the Anderson, California Police Department promptly reached the "accident" scene, followed by local fire department personnel, very shortly before 6:30 a.m. Officer Webb called for Officer Brown, who he has indicated was the traffic specialist. Officer Brown has indicated that he reached the "accident" scene at 6:45 a.m. The veteran was transported from the "accident" scene to Redding Medical Center shortly thereafter. These facts have not been disputed by the veteran. The U.S. Air Force determined that the veteran's disabilities were not incurred in line of duty. His discharge from service is shown to have been under the authority of 10 U.S.C. § 1207 (1991), which indicates that the disability found to render him unable to perform his duties resulted from his intentional misconduct or willful neglect or was incurred during a period of unauthorized absence. I. Other Vehicle Allegation The local police investigators are shown to have considered the veteran's allegation that a pickup truck struck his automobile and forced it off of the road. The evidence of record most supportive of this allegation is the confirmation that white paint transfers were found on the veteran's car door (discussed further below), and the statement in the "Legal Review" dated in March 1989, of the line-of-duty report of investigation, wherein it was conceded that the veteran's "...story of another vehicle impacting his driver's side door and front fender cannot be ruled out because of the damage to that side in the crash...." However, in the "Legal Review" it was then observed that "...police investigators concur...that nothing in the road surface skid marks nor dents in (the veteran's) car give evidence of impact by another vehicle as a factor in this fatal accident...(the veteran's) claim...that he had gone from about 35 m.p.h. to 45 m.p.h. when the alleged other vehicle pulled alongside and struck him, appears to be untenable compared to the 74 m.p.h. estimated by official police formulas." Officer Brown, in a supplemental collision report prepared on December 23, 1988, stated that when he went to inspect the veteran's car on December 21, 1988, in connection with a report that it had left the road on the night of the "accident" because it was struck by another vehicle, he found that "white paint transfers" on the driver's door, located just behind the rear-view mirror, had been "removed by other interested parties" to such an extent that a sample of the transfers could not be obtained for testing. In a February 1989 statement given in connection with the military line-of-duty investigation, Officer Brown added that the damage to the driver's door on the veteran's vehicle appeared to be more consistent with an impact made after the vehicle left the roadway than with an impact made by another vehicle before leaving the roadway. He related, "The indentation and white marking do not appear to be severe enough in length, depth, location or other characteristics to have forced the vehicle off the roadway." Also, in the summary of the service department's investigation into the "accident," it was reported that the white marks on the vehicle's left door appeared to be a plastic rather than a paint substance. The record shows that once "information" was received implicating another individual as the driver of the alleged white pickup truck, an investigation of that individual was undertaken by the Anderson Police Department. The investigation produced no evidence to support the "information." II. Alcohol Involvement Relative to laboratory evidence of the possible involvement of intoxication with alcohol in the "accident," in an affidavit given in February 1989, the Air Force captain who conducted the line-of-duty investigation reported that an Anderson Police Department lieutenant had informed him several days earlier that a blood-alcohol level of .22 percent was obtained by the Redding Medical Center via the veteran's admitting toxicology analysis on November 5, 1988. We recognize that this report of a .22 percent blood alcohol level is hearsay evidence. However, better evidence of the result of that test is apparently not available. According to the November 13, 1988 narrative collision report by Officer Brown, the blood sample taken at Redding Medical Center on admission toxicology had since been lost or disposed of. The military investigating officer reported that the veteran refused to permit release of the blood toxicology report from Redding Medical Center. In an August 1990 letter, a photocopy of which is of record, the veteran denied that he was ever asked to give a release to the Air Force for the results of the test of his blood-alcohol level at Redding Medical Center. If it is true that there is no existing record at Redding Medical Center, this dispute is now immaterial. In a portion of a July 1990 probation officer's report which was reportedly based on a California Highway Patrol report dated November 15, 1988, and Anderson Police reports dated February 10 and March 4, 1989, it was indicated that the veteran's blood-alcohol, taken at the hospital, was ".12." It was also indicated that the deceased passenger also had a blood-alcohol content of ".12." This evidence is also hearsay. In another August 1990 letter, a photocopy of which is of record, a private attorney stated that the veteran's blood sample was lost by the hospital and that all records pertaining to that sample were also lost. The attorney indicated that the reported blood-alcohol level had been ".12." He argued that the reported blood-alcohol level may have been as much as 40 to 50 percent "off," as evidenced by unidentified "Studies." This letter was written to an Air Force officer apparently in an attempt to have the Air Force investigation of the automobile "accident" reopened. The attorney related that he had been the attorney of record for the veteran in a criminal case which arose in connection with the automobile "accident" on November 4, 1988. The attorney discussed the evidence in the veteran's case, mentioning that a District Attorney's office allowed the veteran to plead "no contest" to a charge of misdemeanor vehicular manslaughter with simple negligence, whereas he was originally charged with felony vehicular manslaughter alleging gross negligence. There are five statements of record from individuals who personally observed that the veteran seemed to be under the influence of alcohol when he was first found at the scene of the "accident" and was taken to Redding Medical Center. A local fire department engineer indicated that while rendering first aid to the veteran at the "accident" site, to which he reported at approximately 6:29 a.m. on November 5, 1988, he "noticed an apparent odor of alchol [sic] about the patient. It was what I would term a moderate smell, as it was noticable [sic] while the patient was cared for." A volunteer emergency medical technician with the fire department who indicated that he arrived at the scene of the "accident" at approximately the same time stated, relative to the veteran, that, "At that time I smelt what I believed to be a strong odor of alcohol...." A volunteer firefighter who also indicated he reached the "accident" scene at the same time related that, "While I was assessing the driver for injuries he exhaled into my face. In my opinion the driver smelt as though he had ETOH on board." Officer Webb reported that when he first reached the accident site and was checking on the veteran the veteran was moaning but was unable to talk. Officer Webb reported, "I noticed an odor of an alcoholic beverage coming from the subject." A physician who performed a consultation examination on the veteran in the Emergency Room of Redding Medical Center (on November 5, 1988) noted in his report that "There seems to be alcohol intoxication...." A toxicology laboratory report shows that the passenger in the veteran's car, who died in the "accident," showed a blood-ethanol level of .13 percent upon autopsy. The veteran indicated in statements made to the military investigator and to the probation officer that he had spent the evening of the "accident" with the passenger. III. Speed and Condition of Veteran's Car As indicated previously, it was estimated by Officer Brown of the Anderson Police Department that when the veteran's vehicle left the road the veteran was driving at approximately 74 miles per hour on a road where the posted speed limit was 30 miles per hour, in the approach to a 90-degree curve. Officer Brown based his estimate of the vehicle speed on the physical evidence he found, consisting of analysis of the skid marks on the pavement, dirt and gravel, the incline of the roadway, and the dynamics of the vehicle and tires. In several statements in the record it is reported that the veteran was thoroughly familiar with the road on which the "accident" occurred, having been raised for most or all of his life only 1 mile away. These statements are not shown to have been disputed by the veteran. Officer Brown related finding that the "S" curve where the veteran's car left the road was posted for the speed limit and there were large yellow signs erected with black arrows indicating the curve. There is no indication in the record that the road was not dry, or that the weather was other than clear at the time of the "accident." Officer Brown concluded that the veteran had been driving while intoxicated, at a high rate of speed, and was unable to slow down to make the curve in the road, and that due to his excessive speed his vehicle continued off of the roadway into the dirt and grass, where it began rolling and continued to do so for over 200 feet. According to the reconstruction of the events by Officer Brown, as the veteran's vehicle neared a canal the veteran was ejected and thrown into a barbed-wire fence and continued over the fence, landing in a pasture. An officer with the California Highway Patrol advised, in a February 1989 statement, that he assisted Officer Brown with the "accident" investigation by visiting the "accident" scene on November 7, 1988. He related that he "concurred with the coefficient and resulting speed" calculated by Officer Brown, indicating that that speed was consistent with the vehicle point of rest and damage to the canal bank and ground between the canal and roadway where the vehicle left it. He also indicated that there were no marks on the roadway to indicate that the veteran's vehicle had been forced off of it by another vehicle. He said that the tire mark left on the roadway "very well could have been a centrifugal type and would be consistent with the circumstances of the accident." In Officer Brown's November 1988 report it was indicated that there was no prior mechanical defect apparent on the veteran's vehicle. In a January 1989 report, the county Deputy Coroner reported that he reached the scene of the "accident" at 6:36 a.m. on November 5, 1988, and observed tire marks indicating that the veteran's vehicle was "most likely traveling south at this location at a speed too great to make the turn. The vehicle left the roadway at an angle and proceeded down an approximately five foot embankment into a field possibly rolling over several times before coming to rest in the irrigation ditch." In a "Preliminary Report of Technical Investigation" dated in May 1990, a photocopy of which is on record, a registered professional engineer informed an attorney that he undertook an investigation of the "accident" in which the veteran was involved on November 4, 1988, and concluded that the police estimate of the veteran's speed was too high and that the police investigation on record was not sufficiently thorough. The engineer explained why he believed that the coefficient of friction selected in the calculation of the estimated speed by the police was too high and opined that the actual speed may have been substantially lower than the police estimate. He also pointed out several aspects of the police investigation which he considered to be deficiencies, namely that the veteran's vehicle had not been inspected for mechanical defects which may have contributed to the accident, and the entire perimeter of the veteran's vehicle should have been carefully inspected for other evidence of contact with another vehicle. He noted that further investigation was hampered by the fact that the veteran's vehicle was no longer available for inspection and testing, and by the fact that inspection of the scene of the "accident" would yield limited information because of the time elapsed since the "accident" occurred. The registered professional engineer did not report his own estimate of the speed at which the veteran was driving when the "accident" occurred. IV. Analysis At the outset we acknowledge that none of the conclusions drawn by previous investigators, nor their particular findings of fact, are binding on the VA in this determination, nor are they dispositive of the question at issue on appeal in any other way. Nor is the reported action by the District Attorney in the veteran's criminal case (of which we only have hearsay evidence) or the probation officer's opinion determinative of the issue on appeal. It is neither alleged nor shown that the U.S. Air Force ever officially reversed its determination that the disabilities for which the veteran was discharged from the Air Force were not incurred in line of duty. We point out that there is evidence which raises substantial questions about the accuracy of all of the veteran's alleged recollections about the events leading to his auto "accident." In the July 1990 report by the probation officer the veteran was said to have admitted that his memory of the week prior to the "accident" was actually "blank." He stated that he had returned to the scene of the "accident" and it did not help any. The veteran then stated that the information about his car being struck by a truck was gained while he was semi-conscious and mumbling, under sedation. There is absolutely no affirmative evidence in the record to support the veteran's allegation that another vehicle pushed his car off of the road or forced him to drive off of the road in order to avoid a collision on the evening in question. Although there are references (made by the veteran, his private attorney, and the probation officer) to a .12 percent blood-alcohol level found at Redding Medical Center, the fact remains that a more authoritative (albeit secondary) source of this information indicated that the veteran's actual blood-alcohol level had been .22 percent. There is no documentation of record that personnel of the hospital, the police department, or the service department changed or corrected the report of a .22 percent blood-alcohol level. The difference between blood-alcohol levels of .22 percent and .12 percent is not insubstantial. Nevertheless, the question as to whether the veteran's blood-alcohol level was actually found to be .22 percent or .12 percent on the morning of November 5, 1988, is not crucial in this case. The provision of the VA's Adjudication Procedural Manual, M21-1, cited by the appellant's representative, notes under Paragraph 14.04(c)(1)(b) that a blood-alcohol percentage of .10 or greater establishes a presumption that a person is under the influence of intoxicating liquor, under standards utilized by the National Safety Council, U.S. Department of Transportation, and the U.S. Departments of the Army, Navy and Air Force. We do not find any evidence to show that the private attorney's representation about inaccuracy of the veteran's reported blood-alcohol level should be accorded any probative weight. This remark by the attorney is not shown to have been supported by any clinical evidence pertaining to the veteran or any expert medical advice. It appears to have been based on speculation. We point out that the veteran was not even reached until over seven hours after the automobile "accident" most probably occurred. Five individuals are shown to have found him to have a noticeable odor of alcohol on his breath over seven hours after his "accident" occurred. This evidence supports the police investigator's conclusion that the veteran was intoxicated at the time the "accident" occurred. Whether the veteran can currently remember drinking alcoholic beverages prior to the "accident" is immaterial in light of the overwhelming evidence that he was intoxicated when the "accident" occurred. The evidence that his passenger had alcohol in her body when the "accident" occurred -- enough alcohol to be presumed intoxicated -- is undisputed. Although the private engineer criticized the method of calculation of the veteran's car's speed utilized by Officer Brown, no basis is provided in the record for finding that the veteran's car was traveling at any speed other than approximately 74 miles per hour at the time the "accident" occurred. A California Highway Patrol Officer concurred with Officer Brown's calculations after inspection of the "accident" site. We find it difficult to imagine a sober individual highly familiar with a sharp curve in a road, posted with a speed limit of 30 miles an hour, approaching it at a speed in excess of 70 miles an hour. We therefore believe it is very unlikely that the veteran would have driven his car off of the road, at a curve with which he was highly familiar, if not for his intoxication with alcohol. The July 1990 opinion of the probation officer that the automobile "accident" was "not part of any irresponsible pattern of behavior on the defendant's part" is not found to be of any probative value in this case. It appears that the probation officer meant that the veteran did not deliberately cause the "accident," and/or he did not habitually drink alcohol to excess. We do not doubt that the veteran did not deliberately cause the "accident." Whether he drank alcohol to excess on any previous occasion is irrelevant. The probation officer was reacting to the sympathetic plight of the veteran's situation and the statement of foregiveness by the deceased passenger's parents which he quoted in his report. It is not shown that the probation officer was concerned with the material facts about the veteran's impaired state at the time the "accident" occurred. In fact, the probation officer specifically remarked "Whether he was intoxicated or not has little bearing on the outcome of the case. The main impact of the alcohol issue is how much it will weigh on (the veteran's) conscience." Consequently, we find the clear preponderance of the evidence to demonstrate that the veteran deliberately drank alcoholic beverages (apparently more than one) on the evening of his automobile "accident" in order to enjoy their intoxicating effects; that, as a manifestation of the impairment of his judgment resulting from his alcohol intoxication, he drove at an excessive rate of speed in a reckless manner, in light of the course of the road, with which he was already familiar; and that his reckless driving resulted proximately in the disabilities for which he has applied for service connected benefits. ORDER Injuries sustained in a November 4, 1988 vehicular "accident" are due to the veteran's own willful misconduct; therefore, the benefit sought on appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * C. J. STUREK *38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the section when the section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the section to serve on the panel. The Chairman has directed that the section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a notice of disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.