Citation Nr: 0724476 Decision Date: 08/08/07 Archive Date: 08/20/07 DOCKET NO. 06-11 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether the veteran's claimed left leg injury, to include residual scars, sustained on November 18, 1970, was incurred in the line of duty. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Benjamin Aronin, Legal Intern INTRODUCTION The veteran had active service from December 1968 to November 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2005 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which determined that the veteran's left leg injury incurred on November 18, 1970 was the result of willful misconduct and therefore not sustained in the line of duty. The veteran filed a notice of disagreement (NOD) in February 2006, and the RO issued a statement of the case (SOC) later in that month. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in April 2004. 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 1. All reasonable development and notification necessary for an equitable disposition of the instant case has been completed. 2. Based on the statements of the veteran and a fellow service comrade, after a fight inside a bar in Erlangen, Germany in November 1970, the veteran followed his attacker outside and resumed the fight. CONCLUSION OF LAW The veteran's claimed left leg injury, to include residual scars, was not incurred in the line of duty, but was instead the result of the veteran's willful misconduct. 38 U.S.C.A. §§ 105, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.1(m), (n), 3.301 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, in a December 2003 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate his underlying service connection claims, as well as what information and evidence must be submitted by the veteran, and what information and evidence will be obtained by VA. With respect to the fourth requirement under Pelegrini, the Board notes that the appellant has not explicitly been advised to provide any evidence in his possession that pertains to the claim. However, the claims file reflects that the appellant has submitted and/or identified evidence in support of his service connection claim. Given that fact, as well as the RO's instructions to him, the Board finds that the appellant has, effectively, been put on notice to provide any evidence in his possession that pertains to the claim. Accordingly, on these facts, the RO's omission is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board is without authority to consider harmless error). In regards to providing notice about the particular requirements of what information and evidence is needed to substantiate that an injury occurred in the line of duty, the September 2005 administrative decision explained the application of willful misconduct to the line of duty determination, as well as included relevant citations to 38 C.F.R. §§ 3.1(m), (n). After the appellant was afforded opportunity to respond to September 2005 administrative decision, the February 2006 SOC reflects readjudication of the claim. Hence, the appellant is not shown to be prejudiced by the timing or form of VCAA-compliant notice. See Mayfield, 20 Vet. App. at 543. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or supplemental SOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service personnel records, service medical records, and lay statements from the veteran, a fellow service comrade, a post-service coworker, and the veteran's representative. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran and his representative have been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of this matter, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Line of Duty Determination An injury incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. See 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. § 3.1(m) (2006). Willful misconduct is an act involving conscious wrongdoing or 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 will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. See 38 C.F.R. § 3.1(n) (2006). The Court has held that 38 U.S.C.A. § 105(a) creates a presumption that an injury incurred during active military service will be deemed to have been incurred in line of duty, unless the injury was the result of the person's own willful misconduct or abuse of alcohol or drugs. A finding of 'willful misconduct' is an independent finding which negates the 'line of duty' presumption. To deny a finding of line of duty on the basis of a finding of willful misconduct, the Board must establish that denial is justified by a preponderance of the evidence. See Smith v. Derwinski, 2 Vet. App. 241 (1992). In evaluating the evidence for and against a claim, the Board must conduct its review mindful of the statutory presumption in the veteran's favor. See Akins v. Derwinski, 1 Vet. App. 228, 230 (1991). The Board notes that line of duty/misconduct determinations are based on a 'preponderance of the evidence' legal standard and this standard was most recently affirmed by the US Court of Appeals for the Federal Circuit. See Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005). The veteran has claimed service connection for injuries related to a fight with another service member in November 1970 in and outside a bar near the Erlangen base, approximately one week before his separation from service. In multiple statements of record, including his November 2003 claim and January 2007 videoconference hearing testimony, the veteran has provided an essentially consistent account of the events leading to his leg injuries. He has stated that he was attacked in a barroom by another service member (C.B.), who hit him on the nose with a beer glass. The Board notes that the veteran has been granted service connection and a noncompensable (zero percent) rating for residuals trauma upper nose caused by this attack. The veteran has further stated that he hit C.B. three times in the face, and that the bartender told them to leave. The veteran then followed C.B. outside the bar and resumed the fight. The veteran has explained that he received left leg injuries from being kicked in the shin and from having his leg pinned under C.B.'s torso. A statement dated in January 2004 from the veteran's former service comrade who observed the fight generally corroborates the veteran's account of the incident. The service buddy stated that during a verbal exchange, C.B. struck the veteran in the face with a beer glass without prior warning. The former service comrade indicated that C.B. ran out of the bar and that the veteran ran after him and caught him and a tussle broke out on the ground. The veteran asserts that he has transported by ambulance from the Erlangen base infirmary to Nuremberg military hospital, where his leg was put in a cast. However, no records of the veteran's treatment at those facilities have been identified, as reflected in the RO's September 2004 formal finding on the unavailability of military service records. Although the veteran states he had the cast at separation and a post- service coworker recalled the veteran's having a cast in January 2005 and April 2005 statements, there is no note of it in the veteran's separation papers. A September 1970 separation examination (prior to the alleged injury) found the veteran's lower extremities normal, and the veteran indicated on the day of his separation in November 1970 that there had been no change in his medical condition since the separation examination. The veteran also has not provided any medical evidence showing a diagnosis of a left leg disability. The Board finds that a clear preponderance of the evidence supports a finding that the veteran's left leg injuries sustained in an altercation Erlangen, Germany in November 1970 were not incurred in line of duty, but were due to the veteran's own willful misconduct. The evidence of record indicates that after the initial altercation inside the bar, the veteran chose to pursue his assailant outside and resumed the fight. The Board finds that the veteran's actions in resuming the fight involved intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences, and thus constitute willful misconduct. See 38 C.F.R. § 3.1(n). Since the injuries to the veteran's left leg occurred due to his willful misconduct in resuming the altercation, they cannot be considered to be incurred in the line of duty for purposes of service connection. See 38 C.F.R. § 3.301(a) (2006). Additionally, the Board notes that even if the veteran's actions did not constitute willful misconduct, the evidence associated with the claim would be insufficient to grant service connection. The record contains no medical evidence of any left leg injury during service, of any current left leg disability, or of any medical relationship between the veteran's service and the disability. The Board does not doubt the sincerity of the veteran's belief that he has left leg conditions as a result of his military service. However, questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the veteran is not shown to be other than a layperson without the appropriate medical training or expertise to diagnose himself, he is not competent to render a probative (i.e., persuasive) opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). ORDER The veteran's claimed left leg injury, to include residual scars, sustained on November 18, 1970, was not incurred in the line of duty, but resulted from the veteran's own willful misconduct. ____________________________________________ NANCY RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs