Citation Nr: 0721923 Decision Date: 07/20/07 Archive Date: 08/02/07 DOCKET NO. 04-43 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for residuals of a right tibia fracture. 2. Entitlement to service connection for residuals of a right foot fracture. 3. Entitlement to service connection for residuals of a low back fracture. 4. Entitlement to service connection for residuals of pubic root fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from May 2001 to April 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that although the veteran was provided a June 2005 Statement of the Case on the issue of entitlement to service connection for a left knee disability. In the cover letter sent with the Statement of the Case, he was informed of the requirement that he submit a substantive appeal to perfect his appeal on this issue. Thereafter, this issue was not addressed in any written communication from the veteran or his representative. Therefore, the Board has concluded that the veteran is not currently seeking appellate review with respect to this issue. FINDINGS OF FACT 1. The veteran has residuals of fractures of the right tibia, right foot, low back and pubic root that were sustained in service. low back was incurred during active duty service and was not the result of willful misconduct. 2. None of the fractures was the result of willful misconduct. CONCLUSIONS OF LAW 1. The veteran has residuals of a right tibia fracture incurred in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c), 3.303 (2006). 2. The veteran has residuals of a right foot fracture incurred in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c), 3.303 (2006). 3. The veteran has residuals of a low back fracture incurred in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c), 3.303 (2006). 4. The veteran has residuals of a pubic root fracture incurred in the line of duty during active military service. 38 U.S.C.A. §§ 105, 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c), 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the evidence currently of record is sufficient to substantiate his claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002) 38 C.F.R. § 3.159 (2006). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred or aggravated in the line of duty during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Compensation shall not be paid if the claimed disability or death was the result of the person's own willful misconduct or abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2006). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran contends that service connection is warranted for the residuals of fractures of his right tibia, right foot, low back, and pubic root that were sustained when he was struck by a car during active duty service. Service medical records show that on June 24, 2002, the veteran was struck by a car. He was taken to the hospital and treated for a scalp contusion and fractures of his right leg, right foot, low back, and pubic root. The hospital records note that the veteran had been drinking and that his blood alcohol level was measured at .216. Although the hospital records indicate that alcohol was involved in the accident, they do not specify the involvement. The veteran was separated from active duty service due to alcohol or drug abuse rehabilitation failure in April 2003. In a November 2003 Administrative Decision, the RO determined that the disabilities sustained by the veteran as a result of the June 2002 motor vehicle accident were not incurred in the line of duty as they were due to the veteran's own willful misconduct since he was intoxicated at the time of the accident. While the medical evidence of record establishes that the veteran was intoxicated at the time he was struck by a car, the veteran claims that he was walking in a crosswalk at the time of the incident and that the driver of the vehicle was charged with reckless driving. Service records do not show that the injuries sustained in June 2002 were determined to be due to alcohol intoxication or willful misconduct. In fact, they do not reflect that any line of duty determination was made with respect to these injuries. While it is certainly possible that the veteran's abuse of alcohol was a proximate cause of the injuries, this is not shown by a preponderance of the evidence. Therefore, the Board concludes that the fractures were incurred in the line of duty and that the veteran is entitled to service connection for the residuals of the fractures. ORDER Entitlement to service connection for residuals of a right tibia fracture is granted. Entitlement to service connection for residuals of a right foot fracture is granted. Entitlement to service connection for residuals of a low back fracture is granted. Entitlement to service connection for residuals of pubic root fracture is granted. ______________________________________________ Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs