Citation Nr: 0703597 Decision Date: 02/05/07 Archive Date: 02/14/07 DOCKET NO. 05-27 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran served on active duty from March 1995 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 determination issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Hartford, Connecticut. In April 2006, the veteran testified at a videoconference hearing before the undersigned acting Veterans Law Judge. A transcript of this hearing is of record. FINDINGS OF FACT The preponderance of the evidence establishes the veteran was intoxicated from drinking alcohol on January 3, 2004, and any disability from the accident which occurred on that date was due to the veteran's willful misconduct (intoxication). CONCLUSION OF LAW As the injuries sustained from the accident on January 3, 2004 were the result of willful misconduct, the basic eligibility requirements for nonservice-connected disability pension benefits are not met. 38 U.S.C.A. §§ 105, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.301, 3.340, 3.342 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be given to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA's duties have been fulfilled. Letters dated in May and November 2004 from VA issued by the RO met the four notice requirements specified in Pelegrini. Therefore, VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. VA provided notice to the veteran before the RO adjudicated his pension claim. Further, the content of the notice fully complied with the requirements of U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006), and Quartuccio v. Principi, 16 Vet. App. 183 (2002). Thereafter, the veteran's claim was readjudicated in the June 2005 statement of the case (SOC) issued by the RO. The veteran has been provided every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, the Board finds no defect in notice that results in any prejudice to the veteran. Moreover, the veteran has not shown or alleged any prejudice in the content of the notice concerning this issue. More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). As the Board concludes that the preponderance of the evidence is against the claim for pension, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Accordingly, there is no possibility of prejudice to the veteran under the notice requirements of Dingess/Hartman. As for VA's duty to assist a veteran, the veteran's service medical records, private treatment records, and VA treatment records have been obtained and associated with the claims file. In this case, there is no indication that relevant (i.e., pertaining to treatment for the claimed disabilities) records exist that have not been obtained or attempted to be obtained. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The veteran underwent a VA general medical examination in August 2004; a copy of the examination report is of record. VA has satisfied its duties to inform and assist the veteran in this case. Any "error" to the veteran resulting from this Board decision does not affect the merits of his claim or his substantive rights, for the reasons discussed above, and is therefore harmless. 38 C.F.R. § 20.1102 (2006). There is no reasonable possibility that further assistance to the veteran would substantiate his claim. 38 C.F.R. § 3.159(d) (2006). Merits of the Claim The veteran seeks entitlement to nonservice-connected pension benefits. The law authorizes the payment of a nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a veteran: (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.23, 3.3 (2006). 38 U.S.C.A. §§ 1502, 1521 (West 2002). Willful misconduct is an act involving conscious wrongdoing or a 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 did not per se constitute willful misconduct and willful misconduct as not determinative unless it is the proximate cause of injury, disease or death. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.1(n) (2006). When the drinking of an alcoholic beverage to enjoy its intoxicating effects and the intoxication results in the disability, the disability will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2) (2006). In a March 2005 administrative decision, the RO determined that the veteran's injuries were due to the veteran's use of alcohol and must be considered as due to willful misconduct. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim and the appeal will be denied. Evidence of records indicates that the veteran fell from a tree around 7:00 am on January 3, 2004. In a January 2004 emergency department report, it was noted that the veteran had arrived about 30 minutes after his accident and admitted to drinking six beers that day but denied any drug use. The emergency department report listed diagnoses of: (1) left pneumothorax; (2) cerebral contusion; (3) multiple rib fractures including the left fourth, fifth, and ninth ribs and the right sixth, seventh, and eighth; (4) pneumomediastum; (5) amphetamine use; (6) marijuana use; (7) T8 and T9 tranverse process fracture; (8) T8 superior end plate fracture; (9) T7 laminar fracture; and (10) alcohol intoxication. Additional emergency department records indicate samples for blood work and a urine toxicology test were drawn at 7:50 am. Urine toxicology test results were positive for amphetamines, tetrahydrocannabinol (THC), and opiates. Complete blood count (CBC) test results showed an ethanol value of 141. In an August 2004 VA general medical examination report, the examiner listed an impression of status post fall injury with (1) multiple rib fractures - now healing but still with significant pain on weight lifting and unable to go back to his job as construction person due to pain; (2) bilateral ankle sprains - now resolved, full range of motion, no assistive devices; (3) left shoulder pain due to scapular fracture - not involving range of motion, with full range of motion, no assistive devices; (4) T8-9 fracture - with residual bulging of the left flank as likely as not from thoracic nerve injury, no sensory deficit noted, no respiratory compromise for now, range of motion seem full, no radiculopathy; (5) right knee injury as likely as not medial meniscus partial tear, positive McMurray, with cane; (6) resolved pneumothorax and pneumomediastinum; and (7) cerebral contusion with essentially non-focal neurologic exam. The examiner further noted the veteran's main limitation in obtaining gainful employment as a construction worker was the lifting restriction from his multiple rib fractures. However, he indicated that it remained to be seen how functional the veteran would be after his rib fractures were completely healed. Additional VA treatment records dated between May 2003 and May 2005 showed that the veteran had been prescribed methylphenidate (Ritalin) for treatment of probably attention-deficit/hyperactivity disorder (ADHD) as well as noted findings of cannabis and alcohol abuse in 2003. A January 2004 VA psychiatric progess note showed that the veteran was transferred to a VA facility for rehabilitation after being discharged from inpatient treatment for his accident residuals. The veteran reported that his alcohol intake prior to his accident was 3 to 4 beers and that he was not drunk at the time of the 25 foot fall from the tree. However, the examiner noted that the veteran had a problem with alcohol abuse, especially given the circumstances of his fall. A February 2004 VA discharge summary showed that the veteran underwent physical, occupational, and recreational therapy as well as listed discharge diagnoses of left 4th, 5th, and 9th rib fractures; right 6th, 7th, and 8th rib fractures; T8 and T9 left transverse process fractures; T8 superior end plate fracture; T7 left laminar fracture; left proximal acromion fracture; right frontal cortical contusion; resolved left pneumothorax; depression; and history of alcohol abuse. VA treatment records dated in April 2004 show another inpatient admission for alcohol abuse, depressive disorder, anxiety disorder, and ADHD after an altercation with his roommate and a suicidal attempt. In multiple statements of record as well as during the April 2006 hearing, the veteran and his representative have made numerous assertions that can be distilled into two general allegations: (1) the evidence does not show the veteran was intoxicated at the time of the accident and (2) the proximate cause of the accident was due to nature and a faulty tree branch, not alcohol. Based on competent medical evidence of record showing intoxication at the time of his accident, the Board concludes that the preponderance of the evidence shows the proximate cause of the veteran's January 3, 2004, accident and resulting disabilities was due to his willful misconduct. As shown above, the veteran's emergency room records show that blood was drawn within an hour of his 7:00 am arrival at the emergency room and that this test showed blood alcohol levels elevated to the 141 range. The medical records reflect this level of blood alcohol level is indicative of alcohol intoxication. Further, the standards used by the Nation Safety Council, U.S. Department of Transportation, and the Department of the Army indicate that the veteran's blood alcohol percentage of .14 shortly after his arrival at the emergency room presumptively establishes that he was under the influence of intoxicating liquor. In addition, the Board is unpersuaded that the veteran's accident, as per his allegations, was solely due to nature or faulty tree branch and not alcohol intoxication. As indicated above, the veteran had a documented history of alcohol abuse that predated the accidental fall, admitted to drinking various quantities of alcohol before the accident, and had blood alcohol percentage test results that clearly established he was under the influence of intoxicating liquor shortly after the accident occurred. In short, the preponderance of the evidence shows the proximate cause of the veteran's January 3, 2004, accident and resulting disabilities was due to his willful misconduct. Consequently, the basic eligibility requirements for nonservice-connected disability pension benefits are not met and this appeal must be denied. ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs