Citation Nr: 0731246 Decision Date: 10/03/07 Archive Date: 10/16/07 DOCKET NO. 02-02 939 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) Pittsburgh, Pennsylvania THE ISSUE Whether the injuries sustained by the veteran in a July 23, 1999 train accident were the result of his own willful misconduct and, thus, not sustained in the line of duty. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from January 1993 to April 2000. He was placed on temporary disability retirement (subsequently changed to permanent disability retirement) due to injuries sustained when he was hit by a train on July 23, 1999. This matter before the Board of Veterans' Appeals (Board) arose in connection with a claim for service connection for the residuals of in-service injury. In May 2000 administrative determination, the RO found that the injuries sustained as a result of an in-service train accident were due to the veteran's own willful misconduct and not incurred in the line of duty. The veteran, through his representative, filed a notice of disagreement (NOD) in May 2000. (Although it appears that the RO subsequently requested that the veteran's representative characterize the document as a request to reopen, to enable to it obtain additional service records, the fact remains that this document met the requirements for a valid, timely-filed NOD. See 38 U.S.C.A. § 7105(a); 38 C.F.R. §§ 20.200, 20.201)). After obtaining additional records, the RO issued an April 2001 administrative decision, affirming its initial determination. The veteran, through his representative, again expressed his disagreement with the RO's determination, and the RO issued a statement of the case (SOC) in February 2002. The veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2002. By letter of February 2003, the Board notified the veteran and his representative that it would be undertaking additional evidentiary development pursuant to 38 C.F.R. § 19.9 (2002) and Board procedures then in effect. However, the provision of 38 C.F.R. § 19.9 purporting to confer upon the Board jurisdiction to adjudicate claims on the basis of evidence developed by the Board, but not reviewed by the RO, was later held to be invalid. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Hence, in August 2003, the Board remanded the matter on appeal to the RO (via the Appeals Management Center, in Washington, DC) for additional development, and for reconsideration of the claim. After completing the requested action, the RO/AMC continued the finding that the veteran's injuries were the result of his willful misconduct and therefore not sustained in the line of duty (as reflected in an June 2007 SSOC), and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Regardless of intent, the only service department finding as to whether the veteran's injuries were the result of his own misconduct, was the finding of the Navy report of investigation that the injuries were not incurred in the line of duty and were the result of the veteran's own misconduct. 3. The evidence reflects that the veteran's intoxication from drinking alcoholic beverages resulted proximately and immediately in the injuries for which he is claiming service connection; thus, any finding that the veteran's injuries were not the result of his own willful misconduct would be patently inconsistent with the facts and the governing legal authority. CONCLUSION OF LAW The veteran's injuries from his in-service train accident were the result of his own willful misconduct-i.e., the drinking of an alcoholic beverage to enjoy its intoxicating effects, proximately and immediately resulting in the injuries-and, thus, were not incurred in the line of duty. 38 U.S.C.A. § 105(a), 1110 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.1(m),(n); 3.301(c), 3.303 (2007). 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 & Supp. 2006)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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 her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice 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). VCAA-compliant 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, to include via the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also DAV, 327 F.3d at 1339. However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in February 2004, October 2004, and April 2005 letters, the AMC provided notice to the veteran regarding what information and evidence was needed to substantiate a claim for service connection, and explained that the issue on appeal was whether the injuries sustained by the veteran on July 23, 1999 were the result of willful misconduct, and thus not sustained in the line of duty. These letters also indicated what information and evidence must be submitted by the veteran and what information and evidence would be obtained by VA. The October 2004 letter explained that the veteran needed to advise VA of and to submit any further evidence relevant to his claim. The August 2006 letter informed the veteran how disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations. After issuance of each letter identified above, and opportunity for the veteran to respond, the June 2007 SSOC reflects readjudication of the matter underlying the claim for service connection-whether the injuries sustained by the veteran were the result of willful misconduct and thus not sustained in the line of duty. Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records including records from a private hospital contemporaneous with the accident, the findings of the medical evaluation board (MEB), physical evaluation board (PEB), the Navy's report of investigation, a portion of the police report, and a letter from the Norfolk Southern corporation regarding the accident report. Also of record and considered in connection with the appeal are various statements submitted by the veteran and by his representative, on his behalf. The Board notes that, in an April 2004 statement, the veteran indicated that he had applied for benefits from the Social Security Administration (SSA); no records relating to any SSA disability determination are in the claims file. However, no such records would have no bearing on the issue on appeal, which relates to the veteran's conduct at the time of the in- service accident, and not the nature or etiology of the disabilities resulting from the injuries he sustained. The Board also points out that, in the July 2007 VA Form 646, Statement of Accredited Representative in Appealed Case, the veteran's representative indicated that "the record appears complete." In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the veteran has 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 the matters on appeal, 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. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002 & Supp. 200); 38 C.F.R. § 3.303 (2007). "In line of duty" means any injury incurred or aggravated during a period of active military service, unless such injury was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was the result of the veteran's abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.1(m) (2007). 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 does not per se constitute willful misconduct and willful misconduct is not determinative unless it is the proximate cause of injury, disease or death. 38 U.S.C.A. § 105(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.1(n) (2007). The simple drinking of alcoholic beverage is not of itself willful misconduct. However, 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) (2007). The evidence reflects that the veteran was injured when hit by a train while on authorized leave from his Navy ship. Because this event happened while the veteran was on active duty, the veteran is entitled to service connection for residuals of any such injuries resulting from the in-service train accident, unless the injuries were the result of the veteran's own willful misconduct and/or his abuse of alcohol. Treatment records of the Sentara Norfolk General Hospital from the date of the accident (July 23, 1999) indicate that witnesses observed the veteran "put his hand over his ears and walked right into the path of an oncoming train." These records also note, "He was intoxicated," and, "He was noted to have been drinking some alcohol prior to coming in." The report of an operation in which a right frontal ICP monitor was inserted stated that the veteran was found unconscious after the accident and, "He was found to be severely intoxicated." Significantly, the physical examination section of the July 23, 1999 history and physical indicated that the laboratory data showed, "Alcohol level was .24." The Board notes that, in a March 2002 statement, the veteran's representative noted that there was no mention of alcohol in the police report of the incident, and that the SNGH records noted that the veteran was intoxicated, but that there was no indication of the tests conducted or the validity of such tests. However, the SNGH treatment records (received after the May 2002 statement) show that laboratory testing revealed a .24 blood alcohol level. The VA Adjudication Manual provision in effect at the time of the veteran's claim, M-21, Part IV, Chapter 11, 11.04(c)(2), indicated that laboratory tests bearing on the issue of alcoholic intoxication should be considered together with all other facts and circumstances in making willful misconduct determinations. The Manual stated that the standards to be used as a guide were those of the National Safety Council, U.S. Department of Transportation, and Departments of the Army, the Navy, the Air Force, and the Defense Supply Agency. Those standards indicate that a blood alcohol percentage of .10 or more establishes a presumption that the person was under the influence of intoxicating liquor. As the laboratory tests reflect that the veteran's blood alcohol level was well above that required to presume that he was intoxicated, and there is no evidence rebutting this presumption, the Board finds that the veteran was drinking an alcoholic beverage to enjoy its intoxicating effects. The only remaining question in determining whether his actions constitute willful misconduct is whether his subsequent intoxication resulted proximately and immediately in the injuries for which he seeks service connection. See 38 C.F.R. § 3.301(c)(2) (2007). After being treated at SNGH, the veteran was transferred to the Portsmouth, Virginia Naval Medical Center (NMC). Treatment records from this NMC indicated that the veteran was "witnessed walking into a train." The only page from the police report that was filed only contains a diagram of the accident, but does not contain information regarding the veteran's conduct. The RO attempted to obtain the remaining pages of the police report, but was told that it could only do so if it paid a fee. However, an August 2001 report of contact reflects that an RO employee spoke with a police officer, who read from the report and indicated that the report states that, according to three witnesses, the veteran covered his ears and walked into the side of a moving train. A July 2001 letter from the Norfolk Southern Corporation similarly states that the police report indicates that, according to three witnesses, the veteran covered his ears and walked into the side of a moving train. Various Navy investigations were conducted and conclusions reached regarding the relationship between the veteran's conduct and the injuries he sustained in the in-service train accident. The September 1999 report of investigation prepared by a Navy lieutenant indicates that the veteran, who was on authorized leave from his ship at the time of the accident, was "severely intoxicated" during the incident with a blood alcohol level of .24, he was considered an "average drinker" by his chain of command; his "faculties were impaired by his alcohol consumption as evidenced by placing his hands over his ears as he walked down he sidewalk just prior to crossing the railroad tracks"; that the veteran's "intoxication was the proximate cause of the mishap and resulting impairment"; and that the veteran's injuries "were not the result of a willful desire to do injury to his body but the result of gross negligence due to excessive consumption of alcohol." The recommended determination was "Not in line of duty, due to member's own misconduct." This report was forwarded by the commanding officer of the ship to the Commander of Cruiser-Destroyer Group 8, who, in an October 1999 response, specifically concurred with the finding that the veteran's injuries were incurred not in the line of duty and due to his own misconduct. At the direction of the Commander, a personnel officer wrote in an October 1999 memo that the line of duty/misconduct investigation was completed on that date and that, "It is specifically found that the injuries sustained by [the veteran] were incurred not in the line of duty and were the result of his own misconduct." In August 1999, a MEB forwarded the case to a PEB, which recommended in February 2000 that the veteran's injuries from the accident warranted placing him on the temporary disabled retired list, and, in its additional findings, indicated, "The disability is not the result of intentional misconduct or willful neglect." In June 2002, the PEB recommended that the veteran's status be changed from temporary to permanent disability retirement and again found that, "The disability is not the result of intentional misconduct or willful neglect." Considering the pertinent evidence in light of the above- noted legal authority, the Board finds that the injuries sustained by the veteran on July 23, 1999 were the result of willful misconduct and thus were not sustained in the line of duty. The evidence contemporaneous to the accident includes the veteran's high blood alcohol content and witness accounts that he covered his ears and walked into the path of a moving train. There is no evidence suggesting otherwise; therefore, the evidence reflects that the veteran's intoxication led directly to the accident in which he was at fault and which caused the injuries for which he claims service connection. As the evidence thus indicates that, in the drinking of a beverage to enjoy its intoxicating effects the veteran's intoxication resulted proximately and immediately in the injuries for which he seeks service connection, these injuries are considered the result of his willful misconduct. See 38 C.F.R. § 3.301(c)(2) (2007). In his March 2002 statement, the veteran's representative argued that the Navy investigation line of duty findings were merely recommendations, and not decisions, and that the PEB findings that the veteran was entitled to be placed on the temporary and later permanent retirement lists and that his disability was not the result of intentional misconduct or willful neglect warrants a finding that he did not engage in willful misconduct. The Board notes that a service department determination that an injury or disease was incurred in the line of duty is binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA. See 38 C.F.R. § 3.1(m) (2007). Moreover, a service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. See 38 C.F.R. § 3.1(n) (2007). Here, there was no finding that the veteran's injuries were incurred in the line of duty or that they were not due to the veteran's misconduct. The PEB findings were that the veteran's injuries were not the result of "intentional misconduct" or "willful neglect." These findings do not exclude the possibility that the veteran's injuries were due to misconduct other than "intentional" misconduct, i.e., gross negligence due to excessive consumption of alcohol, as was found in the Navy report of investigation. Thus, as the PEB did not specifically find that the veteran's injuries occurred in line of duty or that the injuries were not due to any misconduct, such findings are not binding on the Board. The only specific findings as to line of duty/ misconduct were those of the Navy lieutenant and Commander, who found, based on investigation, that the injuries were not incurred in the line of duty and were the result of the veteran's own misconduct. Given the evidence noted above, the Board notes, in any event, that any contrary finding would be patently inconsistent with the facts and requirements of the governing legal authority, as the evidence clearly reflects that the veteran drank beverages to enjoy their intoxicating effects, and his intoxication resulted proximately and immediately in the injuries for which he seeks service connection. For all the foregoing reasons, the Board concludes that the injuries sustained by the veteran on July 23, 1999 were the result of his own willful misconduct, and thus were not sustained in the line of duty. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence reflects that the veteran's injuries were the result of his own willful misconduct, that doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The injuries sustained by the veteran in a July 23, 1999 train accident were the result of his own willful misconduct and, thus, not sustained in the line of duty. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs