Citation Nr: 0708615 Decision Date: 03/22/07 Archive Date: 04/09/07 DOCKET NO. 98-11 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the veteran's death was the result of willful misconduct. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The veteran served on active duty from November 1984 to June 1996. The exact dates of his service have not been verified. His service ended with his death in a motor vehicle accident (MVA). The appellant is the custodian and mother of the veteran's minor daughter. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appellant had a hearing before the Board in January 2005 and the transcript is of record. The case was brought before the Board in March 2005, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the appellant in the development of her claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. FINDINGS OF FACT 1. The veteran's death occurred on June [redacted], 1996, while he was on active duty and was caused by blunt-force trauma sustained in a MVA. 2. The veteran operated the vehicle on June [redacted], 1996 without a seatbelt and at an excessive speed after consuming alcoholic beverages and after entering a heated argument with his wife. 3. The veteran's operation of the vehicle without a seatbelt, at excessive speed after consuming alcoholic beverages and in an emotionally heated mental state was the proximate cause of the accident which caused his death. 4. The veteran deliberately and intentionally operated the car on June [redacted], 1996 with knowledge of, or wanton and reckless disregard of the probable consequences. CONCLUSION OF LAW The veteran's death was the result of his own willful misconduct, and his death was not incurred in the line of duty. 38 U.S.C.A. §§ 105, 1110 and 5107 (1996) (2002 and Supp. 2006); 38 C.F.R. §§ 3.1(m), (n), 3.102 and 3.301 (1996) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The appellant has claimed VA benefits on behalf of the veteran's biological daughter, claiming that the daughter is entitled to death benefits because her father, the veteran, was killed in a MVA on June [redacted], 1996, while he was on active duty. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Where a veteran's death occurs while on active duty, the death is presumed to have occurred in the line of duty. 38 U.S.C.A. § 105. Direct service connection, however, may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301 (emphasis added). In short, the line of duty presumption is rebuttable where the "preponderance of the evidence" indicates the veteran's death was due to his own willful misconduct. Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). Here, the facts are not in dispute. The veteran, while on active duty, was confronted by his wife on June [redacted], 1996 over a domestic dispute, which ensued into a heated argument. The veteran proceeded to his wife's car to drive off, but his wife quickly stepped into the back seat of the car prior to his departure. From eye witness account, his wife was wearing a seat belt, but he was not. Investigative reports conclude the veteran then proceeded to drive at a minimum speed of 81.5 miles per hour (mph) on a 55 mph speed limit road, attempted a slight curve at the excessive speed and drove off the road hitting a tree. Both passengers were killed. Prior to a complete police investigation, to include autopsy and laboratory testing, the Army conducted a "line-of-duty" investigation and concluded in a July 1996 report that the veteran was killed in an injury incurred in the line of duty. A subsequent Army investigative report, dated October 1996, concluded the veteran had committed negligent homicide. The report noted the veteran's excessive speed and the fact that his blood alcohol content was at .063 percent (although his urine alcohol content was .088 percent). A psychological autopsy report also noted the veteran's alcohol content and the fact that one open beer can was found at the scene of the accident. The psychologist, however, opined that "Alcohol does not appear to be an issue in the accident, but the heated emotions and potential for arguing in the car seem to be likely contributors to [the veteran's] lack of concentration to his driving." In the psychologist's opinion, the veteran's cause of death was "accidental due to excessive speed, and not due to suicide." The Board notes that a service department finding that injury, disease or death was occurred in the line of duty 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 C.F.R. § 3.1(m). In this case, the Board concludes that the Army's subsequent October 1996 report is based on more thorough and complete information and is thus far more probative than the July 1996 finding that the veteran's death was incurred in the line of duty. Additionally, for reasons to be discussed more thoroughly below, the Board concludes that the July 1996 determination is not binding on the VA because it is patently inconsistent with the relevant facts and law. The relevant inquiry here is whether the veteran's collective actions constituted willful misconduct, thus barring direct service connection for his untimely death. The Board concludes they did. In vehicular accidents, VA will consider combined factors such as evidence of excessive speed, improper diversion of attention to companions, or use of intoxicants. M21-1MR, Part III.v.1.D.17.d. From the collective investigative evidence, the relevant facts that may have contributed to the veteran's death include: (1) driving shortly after consuming alcohol; (2) driving at excessive speed; (3) driving without a seatbelt; (4) driving while in an emotionally heated state of mind; (5) operating the car in a gross and reckless manner. All of these factors were done by the veteran deliberately "...with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. § 3.1(n)(1). With regard to the veteran's alcoholic consumption, the simple drinking of alcoholic beverage is not of itself 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. 38 C.F.R. § 3.301(c)(2). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). In this case, the veteran's blood alcohol content was only measured at .063 percent. At that time, Georgia law defined "intoxication" to start at .10 percent. Ga. Code Ann., § 40-6-391(a)(5) (1996). Additionally, under Georgia law, "any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving." Ga. Code Ann., § 40-6-390(a) (1996). In citing Georgia law, the Board notes that it is not "adopting" state law in this decision, but rather is considering the local definitions of "intoxication" and "reckless driving" in determining whether the veteran's actions constituted "willful misconduct." See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998) (considering local law, without "adopting" law contrary to Veteran's law, is not unconstitutionally vague in establishing the criteria that could constitute willful misconduct). Similar to Georgia law, blood alcohol content percentages lower than .10 do not raise a presumption of intoxication under VA's Adjudication Procedure Manual M21-1, (M21-1), Part IV, Chapter 11, 11.04(c)(2) (using the standards of the National Safety Council, U.S. Department of Transportation and the Departments of the Army, Navy and Air Force). Blood alcohol content percentages from .05 to .10, however, do raise considerations of loss of judgment and muscular coordination. Id.; see also Forshey v. West, 12 Vet. App. 71 (1998) (noting such consideration for blood alcohol content in the range of .08 to .10), en banc affirmed, Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002). The Board concludes that while it is clear that the veteran consumed some amount of alcohol prior to driving, it is not possible to find with any degree of certainty that the veteran was legally intoxicated at the time of the MVA or that alcohol substantially contributed to the veteran's death. The point in this case, though, is regardless of the amount of the veteran's alcohol consumption, his actions were the proximate cause of his death. Proximate cause is "[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." BLACK'S LAW DICTIONARY 1103 (5th ed. 1979); see Forshey, supra. Proximate cause is "[t]he dominant, moving or producing cause. The efficient cause; the one that necessarily sets the other causes in operation." BLACK'S at 1103. In this case, what can be deduced from the evidence is that the veteran was likely impaired due to a combination of a heated emotional state and alcohol consumption. What is absolutely clear from the evidence is that the veteran's operation of his motor vehicle in a reckless and negligent manner was the proximate cause of his death. Two eye witnesses of the incidents leading up to the veteran's death include his step-son and his step-son's girlfriend. Both testified as to the veteran's argument with his wife, which increasingly escalated prior to the veteran driving. Neither can say for sure whether the argument continued in the car, but it is clear he entered the car already emotionally charged and without a seatbelt. Both witnesses proceeded to follow the veteran, but failed to keep up the same speed as the veteran turned the curve. The testimonies are fully corroborated with the accident and investigative reports. It is evident both from forensic investigation and eye witness that the veteran was traveling over 80 mph at the time of the collision and did not attempt to slow down or brake even upon approaching the curve where the accident occurred, as evidenced by the tire markings left when the car left the road. The accident investigative report indicates that the road conditions were good, with dry conditions and free of foreign matter, and that the weather was hot and clear. The accident, then, was caused by excessive speed and not by some contributory weather- or road-related condition. It is the Board's opinion that the manner in which the veteran operated his motor vehicle at the time of the accident amounted to willful misconduct, and the overall evidence of the circumstances leading up to the event are sufficient to rebut the line-of-duty presumption with respect to his injuries and death. It is unclear whether the veteran was arguing with his wife while driving because the only witnesses to those events are deceased. However, it is clear from the evidence that the veteran was driving in an emotionally charged state at excessive speed, especially in light of the curve and the veteran's probable knowledge of the road. The veteran chose to operate the car in a dangerous manner, which amounted to willful misconduct because his actions "involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. § 3.1(n)(1). Evidence that the veteran was speeding and struck a stationary object (namely, a tree) after driving off a road, combined with the evidence of at least some alcoholic consumption provides sufficient evidence to create a reasonable finding of wantonness. Sharp v. Egler, 658 F.2d 480 (7th Cir. 1981). Lastly, with respect to the "benefit of the doubt" standard of proof established by 38 U.S.C.A. § 5107(b), the Board find that the preponderance of the evidence is against the claim for the benefit sought on appeal. None of the facts described above are disputed. The Board notes that the Court has held that failure to act wisely, without adequate findings or bases, is not sufficient for finding willful misconduct. See Smith v. Derwinski, 2 Vet. App. 241 (1992). In this case, however, the Board's finding of willful misconduct is not merely based on the veteran's unwise choices, but rather with specific decisions indicative of wanton and reckless disregard of probable consequences. The appellant has provided no evidence to refute or dispute the conclusions and opinions arrived by the investigation conducted by the Army. There simply is no benefit of the doubt which can be resolved in the appellant's favor. Although the Board is sympathetic to the plight of the appellant and the veteran's surviving daughter, the Board must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) Unfortunately, the totality of the circumstances in this case clearly indicate the veteran was at fault in causing his own death through his misconduct. The Veterans Claims Assistance Act (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). The notice requirements were met in this case by a letter sent to the appellant in July 2004. That letter advised the appellant of the information necessary to substantiate her claim, and of her and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b) (2005). The 2004 letter told her what evidence was necessary, to provide or identify any relevant evidence, and that it was ultimately her responsibility to ensure that VA received any relevant evidence. Cf. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The appellant has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. Since the Board has concluded that the preponderance of the evidence is against the claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice required by 38 U.S.C.A. § 5103(a) should be provided to an appellant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was not done in this case since the initial decision was rendered prior to enactment of the VCAA. However, this was not prejudicial to the appellant, since she was subsequently provided adequate notice, and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to her in 2006. The Board also concludes VA's duty to assist has been satisfied. The veteran's relevant service records are in the file. Investigative records identified have been obtained along with any and all evidence used in the investigation of the veteran's death. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In this case, the police investigative records include autopsy and psychological autopsy reports, which sufficiently opine as to whether the veteran's death can be directly attributed to service. An administrative decision, moreover, was also reached regarding whether the veteran's death occurred in the line of duty. Further opinion is not needed because, at a minimum, there is no persuasive evidence that the veteran's death was incurred in the line of duty. This is discussed in more detail above. Thus, the Board finds that VA has satisfied the duty to assist the appellant. In the circumstances of this case, additional efforts to assist or notify her in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the appellant at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim, as indicated above. ORDER The veteran's death was the result of his own willful misconduct and, therefore, the benefit sought on appeal is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs