Citation Nr: 0711849 Decision Date: 04/23/07 Archive Date: 05/01/07 DOCKET NO. 02-19 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for traumatic brain injury. 2. Entitlement to service connection for organic brain syndrome. 3. Entitlement to service connection for a back condition. 4. Entitlement to service connection for a bilateral knee condition. 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for post-traumatic stress disorder (PTSD). 7. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from February 1996 to September 1998. He was discharged from service for disability not considered to be within the line of duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for traumatic brain injury, organic brain syndrome, back condition, bilateral knee condition, headaches, PTSD, and depression. The issue of entitlement to service connection for a back disorder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. The September 1996 motor vehicle accident was the result of the veteran's willful misconduct due to his wanton or reckless disregard for the probable consequences of his actions. 2. The veteran's willful misconduct was the proximate cause of the traumatic brain injury, organic brain syndrome, headaches, PTSD, bilateral knee disorder and depression he suffered in the September 1966 motor vehicle accident. 3. The service medical records do not refer to an injury to the knees during training, and current bilateral chondromalacia is not related to service. CONCLUSIONS OF LAW 1. Traumatic brain injury was not incurred in or aggravated in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2006). 2. Organic brain syndrome was not incurred in or aggravated in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2006). 3. A bilateral knee disorder was not incurred in or aggravated in service or in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2006). 4. Headaches were not incurred in or aggravated in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2006). 5. PTSD was not incurred in or aggravated in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, (2006). 6. Depression was not incurred in or aggravated in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service, but no compensation shall be paid if the disability is a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Direct service connection 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 or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (a). See also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.1(m). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(3). 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)(1) (2006). Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1 (n) (2) (2006). Willful misconduct will not be determinative unless it is the proximate cause of disease or injury. The provisions of 38 U.S.C.A. § 105 establish a presumption in favor of findings that a veteran acted in the line of duty. In order to deny a claim based on a finding of willful misconduct, a preponderance of the evidence must support such a finding. Smith v. Derwinski, 2 Vet. App. 241 (1992). Additionally, the element of knowledge of or wanton or reckless disregard of the probable consequences must be specifically addressed. Myore v. Brown, 9 Vet. App. 498, 503-4 (1996). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Some disorders, if manifested to a compensable degree in the first postservice year, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The appellant and his representative contend, in essence, that service connection is warranted for traumatic brain injury, organic brain syndrome, a bilateral knee disorder, headaches, PTSD, and depression based upon service incurrence. The appellant asserts that he sustained these injuries during an automobile accident during service. He claims that he was a passenger and not the driver and that he was not intoxicated during the accident. He also contends, concerning the bilateral knee disorder, that he injured his knee when he stepped into a hole during training prior to the motor vehicle accident. In this case, the record shows that the veteran did sustain injuries in a motor vehicle accident which occurred on September [redacted], 1996, when the veteran was on leave, and that he has current disorders and complaints that have been related by objective medical evidence to that accident. In this regard, an October 2001 VA medical opinion noted that the Medical Evaluation Board attributed the veteran's traumatic brain injury, organic brain syndrome, back problems, knee problems, headache, depression, and PTSD to his motor vehicle accident in service. Additionally VA outpatient treatment records beginning after service and until 2005 show various diagnoses, including psychiatric diagnoses of PTSD, dysthymia, and depression (see, August 2001 and September 2001, October 2001 report); organic brain syndrome (see, June 2000); traumatic brain injury (see November 2004); and low back (see February 2005), for example. The Board must address whether the injuries sustained in service and the motor vehicle accident that caused them are due to the willful misconduct of the veteran. The record shows that in September 1996 the veteran was involved in an automobile accident while on leave. The discharge summary from a private facility -- where he was treated from the date of his accident until his transfer to the Walter Reed Army Medical Center in October 1996 - describes him as the nonbelted driver of a car involved in a high-speed, one-vehicular crash. It was noted that the passenger on the right side of the car was not as badly hurt. It was reported that the veteran had been drinking prior to the accident. The report indicated that the veteran had a serum alcohol level of 174. The discharge diagnoses were: severe closed head injury; basilar skull fracture; facial bone fractures; right pulmonary contusion/atelectasis; post- traumatic right lobe pneummonitis; right periorbital laceration; and intoxication. The veteran was admitted to Walter Reed Hospital on October 6, 1996, with an admitting diagnosis of status post severe traumatic brain injury. In a December 1996 letter, a VA physician noted that the veteran had suffered a traumatic brain injury in September 1996, and that he has residual cognitive deficits and is unable to remember the details of the accident. A traffic accident report written on the date of the accident indicates that the veteran was the driver of the automobile and that his mother was the registered owner. An incident report shows that the car had been involved at a hit and run accident at a Subway Shop, that there was an intoxicated driver, and officers were in pursuit. It was noted that the driver failed to stop when pursued by the police. It was reported that the car was chased through a residential neighborhood with many stop signs at which the car did not stop. The car crashed. The reporting officer who arrived on the scene observed the two occupants of the vehicle were injured and trapped inside, called for assistance, moved the driver's seat back from the caved-in roof area, and cut the seat belt holding the driver to ease his breathing. He talked with the passenger until help arrived. After the driver and passenger were removed from the vehicle, the driver of the car was identified as the veteran once he was placed in the ambulance, when the reporting officer removed the driver's wallet from his pants pocket and retrieved his driver's license. The officer stated that he could detect the odor of alcohol on the veteran's breath. As noted above, the veteran has argued that he had not been drinking the night of the accident and that he was not driving the car. In support of his contentions, the veteran pointed out that on a September 15, 1996 accident reconstruction report it is shown that the accident was not DUI related. Additionally, he has submitted an October 1997 letter and a July 1999 letter from a collision repairman containing the opinion that the driver of the veteran's mother's car would have sustained only minor injuries and passenger would have had more serious injuries. He reported in both letters that he has been in the auto body/collision repair business for over 25 years, and in the 1999 letter he stated that he is certified in various repair specialties. He reported that he could tell that based on the injuries the veteran sustained he was on the passenger side of the vehicle, and that the injuries sustained by the other party indicated that he was driving. The veteran also submitted statements from his mother (received in February 1999), statements from friends (received in August 1999), and a witness statement (dated in November 1997). He also submitted in March 2002 a copy of his hematology reports dated in September 1996. Although he states that they show that there was no alcohol in his system, the test results provided do not include the results of any blood alcohol testing. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board finds that the evidence supports a finding that the veteran was the driver of the vehicle involved in the accident in 1996 and that he was intoxicated at the time of the accident. This is based on the contemporaneous administrative and medical evidence that consistently supports these findings. The evidence shows that the police officer on the scene at the time of the accident determined by reviewing the veteran's drivers license that the veteran was the driver of the vehicle and reported by personal observation that the veteran had been drinking. Additionally, medical examiners have reiterated that the veteran was the driver of the vehicle, and that he was intoxicated. Intoxication was one of the discharge diagnoses when the veteran was being treated for the injuries he sustained in the accident. The veteran's own assertions, and those of his mother, friends, and the repair specialist, have been considered, but have less probative value. The Board gives the lay statements no probative weight concerning the medical matters in the absence of evidence that the veteran or the other parties have the expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The statement from the witness who arrived on the scene of the accident does not specifically discuss whether the veteran was driving the car or whether he was intoxicated. The opinion of the automobile repairman has less weight regarding who was driving the car than the report of the police officers who were present at the scene and contemporaneously viewed and reported the facts of the accident. It is noted that the official accident reconstruction report of September 15, 1996 listed the veteran as the driver of the vehicle. While that report did indicate that the accident was not DUI related, the report was written days after the accident and is outweighed by the contemporaneous findings of the police officer on the scene and the medical finding of intoxication. The blood test results submitted by the veteran have also been noted; however, the reported test results do not in and of themselves show that the veteran was not intoxicated at the time of the accident because blood alcohol level is not among the findings. Thus the preponderance of the evidence shows that the veteran's current disabilities are due to injuries sustained in an accident that occurred due to his willful misconduct during service. Additionally, the record supports a finding that the veteran acted with wanton or reckless disregard of the probable consequences, as it shows that the veteran hit another vehicle and did not stop, and that he drove through residential neighborhoods without regard for traffic signs and refused to stop when chased by the police. As to the contention that the veteran's knee disability is due to inservice injury other than the automobile accident, the Board notes that in there is no showing in the service medical records of treatment for an injury to the knees during training. Although the veteran has been found to have knee problems (see, VA X-ray report June 2000, October 2001 VA medical opinion), X-rays show no bilateral knee abnormality, and he has demonstrated full range of motion of the knees (see, VA outpatient addendum dated in March 2002 and VA examination report of May 2005). Chondromalacia was diagnosed in February 2005 during VA outpatient treatment. The Board notes an August 1998 statement in which a physician at a Naval Hospital stated that the veteran was under care for patellofemoral syndrome of both knees and that he developed pain in his knees while training in special warfare in 1996. Also, a VA examiner in May 2005 opined that the veteran's knee injury may have been initiated by an incident in which he twisted it in a hole. These opinions have little probative value because they are based on a history provided by the veteran that has no basis in the record. The May 2005 VA examiner's opinion is also speculative. The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record, see Miller v. West, 11 Vet. App. 345, 348 (1998), As well, the Court has held that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not constitute competent medical evidence merely because the transcriber is a health care professional, see LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Finally, the Court has held that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty, see Bloom v. West, 12 Vet. App. 185, 187 (1999), that a medical opinion is inadequate when unsupported by clinical evidence, see Black v. Brown, 5 Vet. App. 177, 180 (1995), and that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Absent a showing of an inservice injury other than the motor vehicle accident to which a current disability could be associated, the claim must be denied. Duties to Notify and Assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159 and 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's March 2001 letter describing the evidence needed to support the veteran's claim was timely mailed before the initial rating decision denying the claim. It described the evidence necessary to substantiate a claim for service connection, identified what evidence VA was collecting, requested the veteran to send in particular documents and information and identified what evidence might be helpful in establishing his claim. Although that letter did not explicitly ask the veteran to send VA whatever evidence he had pertaining to his claim, this veteran was not prejudiced because the letter did invite the veteran to get records and send them to VA himself, and the veteran did, in fact, submit evidence to VA. A second letter was sent to the veteran in August 2004, which fully complied with Quartuccio. Additional letters were sent in May 2005 and November 2005. Neither the March 2001 letter nor the subsequent letters, however, addressed what evidence was needed with respect to the disability rating criteria or the effective date for service connection for an ankle disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). That information was included in the October 2006 supplemental statement of the case. This veteran was not harmed by the delay in receiving that information because service connection was denied, rendering moot the issues relating to rating criteria and the effective date of an award. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA met its duty to assist the veteran by obtaining available service medical records, other treatment records, and a VA medical examination with an opinion. Additionally the RO made repeated attempts to secure records surrounding the motor vehicle accident that occurred in September 1996. In this regard, the RO requested the veteran's Navy personnel records. The veteran was contacted in May 2005 and requested to send information and return signed release forms. He did not respond. Requested Naval records were received in May 2006. The veteran has not identified any records that could be pertinent to his claim that have not been secured. While the veteran informed the Board in a November 2006 letter that he was being treated for PTSD at a VA center and requested those records be secured, the Board finds that a remand to secure those records is not necessary since the determinative issue is not whether the veteran has PTSD or whether it is related to the motor vehicle in service, but rather whether the inservice event was due to misconduct. These records are not pertinent to that matter. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case, to the extent possible. ORDER Service connection for traumatic brain injury is denied. Service connection for organic brain syndrome is denied. Service connection for headaches is denied. Service connection for a bilateral knee disorder is denied. Service connection for post-traumatic stress disorder (PTSD) is denied. Service connection for depression is denied. REMAND Concerning the claim for service connection for a back condition, the veteran argues that he sustained injury to his back prior to the September 1996 automobile accident when he was in training and stepped into a divot and twisted his knees and back. He also stated that he slipped down a flight of stairs while carrying IV pumps and twisted his back, and he maintains that the epidural steroid injections he received for the back pain made his back worse. An injury during training is not documented in the service medical records, but treatment for a back injury sustained when carrying IV pumps is confirmed in the service medical records. When the Board remanded these issues to the RO in December 2003, the RO was requested to have the veteran examined to determine whether he has any disability of the back that was incurred in service but was not the result of injuries sustained in an automobile accident on September [redacted], 1996 (e.g., whether there is any disability related to the claimed tripping prior to the accident or the documented slipping that occurred in January 1998). The veteran was examined by VA in May 2005 and while the examiner offered an opinion, his findings did not address the information specifically requested by the Board. The examiner did not address whether it was at least as likely as not that any current back is related to the documented slipping that occurred in service in January 1998. Thus a remand on this issue is required. In view of the foregoing, the claim is hereby REMANDED to the RO for the following action: 1. Have the May 2005 examiner review the file and determine whether it is at least as likely as not (a 50 percent probability or greater) that the diagnosed lumbar spine intervertebral disc syndrome is related to an injury sustained in service other than in the September 1996 automobile accident. In particular, the examiner should indicate whether it is at least as likely as not that the back disorder was the result of the documented slipping incident that occurred in January 1998. The claims folder should be made available to the examiner. The examiner should state the basis for the conclusions reached. If the May 2005 examiner is not available, have the file reviewed by another VA examiner for the requested opinion. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant is hereby notified that it is the appellant's responsibility to report for the examination, if scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2006). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs