Citation Nr: 0731896 Decision Date: 10/10/07 Archive Date: 10/23/07 DOCKET NO. 05-32 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a fractured skull and multiple lacerations to face, body, and extremities with no nerve or artery involvement. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran had active military service in the United States Marine Corps from May 1960 to May 1964. This matter comes to the Board of Veterans' Appeals (Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for residuals of a fractured skull and multiple lacerations to face, body, and extremities with no nerve or artery involvement. FINDINGS OF FACT 1. The veteran was the driver in a motor vehicle accident while traveling at a speed of at least 85 miles per hour in a 30 mile per hour zone. 2. The veteran's in-service automobile accident was due to deliberate and intentional wrongdoing on his behalf; his disability is proximately related to the accident. CONCLUSION OF LAW The claim of entitlement to service connection for residuals of a fractured skull and multiple lacerations to face, body, and extremities with no nerve or artery involvement is barred by law. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.1(m), (n), 3.301 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Analysis The veteran seeks service connection for residuals of a fractured skull and multiple lacerations to face, body, and extremities with no nerve or artery involvement, due to a head injury incurred as a result of an automobile accident in service. The veteran essentially contends that the in- service accident caused his current disabilities. The veteran states that he was not the driver in the accident, and, therefore, the accident was not due to his intentional misconduct. In sum, the veteran asserts that his current disabilities are directly related to his service, entitling him to disability compensation. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. As such, in order to establish entitlement to service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Direct service connection may be granted, however, 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; 38 C.F.R. § 3.1(m). 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). Mere technical violations 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. 38 C.F.R. § 3.1(n)(3). The simple drinking of alcoholic beverage is not of itself 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). At the outset, the Board notes that the criteria set forth in Hickson are met. A VA outpatient report dated March 2005 states that the veteran has depression secondary to a general medical condition, which is listed as a severe head injury. Service medical records indicate that the veteran suffered a severe head injury while in service. Additionally, the veteran's physical disabilities are related to the in-service motor vehicle accident. The service personnel records show that in November 1960, the Judge Advocate General investigated an October 1960 motor vehicle accident that resulted in injury to the veteran, including a severe head injury. According to the report, the veteran was driving a 1956 Chevrolet sedan with one male and one female passenger while on authorized leave in Texas. The report stated that the veteran drove "in excess of 85 miles per hour in a 30 mile per hour speed zone in a matter that was grossly negligent and a reckless disregard of the fact that substantial injury or death was likely to result to himself and his passengers." When the female passenger in the vehicle requested that the veteran reduce his speed, the report states that the veteran responded "What's the matter? Are you afraid to die? You've got to die some day." The report further stated that the veteran "intentionally and deliberately moved the steering wheel from one side of the road to the other until at about 90 miles per hour [the veteran] lost control, struck and broke a utility pole and was thrown from the vehicle." The veteran's vehicle, after striking the utility pole, traveled approximately 260 additional feet. Other records indicate that the veteran was cited by the City of Austin for driving at an imprudent speed of approximately 85 miles per hour in a 30 mile per hour zone. The report stated that the veteran consumed at least three beers over a period of three hours. The veteran was hospitalized as a result of his head injuries for approximately three to four months. The veteran was initially unconscious for two and a half days after the accident. The female passenger sustained a badly bruised nose and forearm, was hospitalized, and released. There is no discussion of the male passenger's injuries in the report. There was no finding that weather contributed to the accident. During the accident investigation, the veteran claimed that a dip in the road caused him to lose control of his vehicle; the Judge Advocate General found that to be a secondary factor. As discussed above, a medical examination relates the veteran's current physical disabilities to the above incident. Nevertheless, although the veteran currently has the claimed disabilities and the medical evidence discussed above relates the disabilities to the in-service motor vehicle accident, his claims must be denied. The veteran's disabilities and injuries are due to his in-service willful misconduct. In essence, there is persuasive objective evidence that establishes that the veteran engaged in conduct that was "deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. § 3.1(m), (n). The Board notes that this rule is not to be applied for a "technical violation." 38 C.F.R. § 3.1(n)(2). However, the Board finds that this is not a technical violation. The Board finds that the veteran, by traveling at a speed of 85 miles per hour in a 30 mile per hour zone, did not merely speed and cause an accident, but drove in a reckless manner. This finding is further supported by the fact that the veteran was swerving the vehicle from side to side for no apparent reason. After reviewing the veteran's statements, the Board finds that the veteran clearly knew he was traveling in a reckless manner, as indicated by the statement to his female passenger. The Board notes that the veteran consumed three beers over a period of three hours prior to this incident. The Board also notes, however, that there is no evidence that the veteran was ever charged with any alcohol-related offenses as a result of this incident. While the Board notes that the Judge Advocate General found that alcohol contributed to the accident, as there is no evidence that the veteran was charged with any alcohol-related crimes as a result of this accident, the Board makes its finding of willful misconduct based primarily upon the evidence of the veteran's speed and manner of driving at the time of the accident, and not based solely on his consumption of an alcoholic beverage. 38 C.F.R. § 3.301(a)(2). The Board notes the veteran's statement that he was not the driver of the vehicle when he was involved in the accident. However, the Board specifically finds the veteran's statement to not be credible. The veteran's statements are completely contradicted by the other evidence available to the Board through the thorough and persuasive November 1960 Judge Advocate General's report. As such, the Board concludes that the in-service accident was the result of the veteran's own deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences, and his current disabilities are proximately and immediately related to that conduct. BLACK'S LAW DICTIONARY 1103 (5th ed. 1979); see Forshey v. West, 12 Vet. App. 71, 73-74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (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."). Compensation payment for disability proximately caused by the veteran's own willful misconduct is prohibited by law. See 38 C.F.R. § 3.301(c)(2). In sum, the veteran's residuals of a fractured skull and multiple lacerations to the face, body, and extremities that is the result of the head injury incurred during service was caused by his own willful misconduct by driving at an excessive rate of speed. The benefit of the doubt doctrine in not applicable in this case; the claim is denied. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.1(m), (n), 3.301. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA. The agency of original jurisdiction (AOJ) provided a VCAA notice letter to the veteran in March 2005, prior to the initial adjudication of the claim. The VCAA letter notified the veteran of what information and evidence must be submitted by the veteran and what information and evidence would be obtained by the VA. The content of the letter clearly complied with all four elements set forth by the Court in Pelegrini, supra. Although the veteran's claim is being denied because of his willful misconduct, the Board also notes that the March 2005 VCAA letter did not directly inform the veteran of the requirement regarding this. However, the veteran was subsequently informed of the requirements in both the decision and statement of the case. As the veteran responded to these statements by arguing that he was a passenger and thus could not have committed willful misconduct, the Board finds that the Board finds that he has demonstrated actual knowledge of the need to establish that his in-service accident was not the result of willful misconduct. VA can demonstrate that a notice defect is not prejudicial if it can be demonstrate that any defect in notice was cured by actual knowledge on the part of the veteran that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it. See also Overton v. Nicholson, 20 Vet. App. 427 (2006). To whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. It appears that the veteran has not been sent the notice required by Dingess. Regardless, as no disability rating is being assigned to the issue on appeal, any question as to disability rating and effective date is moot. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has received the veteran's service medical records, other service records relating to this accident, and the veteran's VA records. Assistance to the veteran shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4). However, merely filing a claim for benefits and showing a current illness does not trigger these duties. VA's duty to provide a medical examination is not triggered unless the record contains competent evidence that the claimed disability began during service or within an applicable presumptive period, and evidence of an association between the claimed disability and that event, illness or injury in service. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79, 80 (2006). However, the Board also notes that § 5103A only requires a VA examination when the record "does not contain sufficient medical evidence for the Secretary to make a decision on the claim." As the record in this case does contain sufficient medical evidence, the Board finds that a VA examination is not required. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been received. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for residuals of a fractured skull, and multiple lacerations to face, body, and extremities with no nerve or artery involvement is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Important Notice: Attached to this decision is a VA Form that provides information concerning your rights to appeal our decision. Due to recent changes in the law, some of the information contained in the attached notice of appellate rights form is no longer accurate concerning the ability to pay attorneys and agents to represent you. Some additional information follows that summarizes the current law. To the extent that the information contained in the attached VA Form conflicts with the summary below, please disregard the information on the VA Form and instead rely upon the following information: Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006). If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. VA is in the process of amending its regulations governing representation of claimants for veterans' benefits in order to implement the provisions of the new law. More information concerning the regulation changes and related matters can be obtained at http://www1.va.gov/OGC (click on "Accreditation and Recognition of Service Organizations"). Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the Chief Counsel for Policy (01C3) Board of Veterans' Appeals 810 Vermont Avenue, NW, Washington, DC 20420 Facsimile: (202) 565-5643 (When final regulations are published to implement the requirements of the new law, fee agreements must be filed with the VA Office of the General Counsel and not the Board.) Department of Veterans Affairs