Citation Nr: 0734757 Decision Date: 11/02/07 Archive Date: 11/19/07 DOCKET NO. 95-11 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether the veteran's May 1988 motor vehicle accident injury residuals are the result of willful misconduct to include alcohol abuse and, thus, not sustained in the line of duty. . REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from June 1981 to November 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a May 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied the veteran's claims for service connection for injuries related to a May 1988 motor vehicle accident. In May 1997, the Board characterized the veteran's claims related to the motor vehicle accident as including a claim that the veteran's May 1988 motor vehicle accident was not the result of willful misconduct. The Board remanded the claim at that time and again in August 1999, October 2000, September 2003, and October 2005. FINDINGS OF FACT 1. The veteran was involved in a motor vehicle accident in May 1988. 2. Witnesses on the scene and medical personnel who provided treatment following the accident noted a strong odor of an alcoholic beverage emitting from the veteran and observed that he appeared to be intoxicated. 3. The veteran's in-service motor vehicle accident was due to deliberate and intentional wrongdoing on his behalf. CONCLUSION OF LAW Claims of entitlement to service connection for residuals of the May 1988 motor vehicle accident are 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 The veteran contends that a May 1988 motor vehicle accident was not the result of his being intoxicated. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In February 2004, the veteran was advised as to what evidence VA was responsible for obtaining and what evidence the veteran should submit, including any evidence that would show his accident and subsequent injuries occurred in the line of duty and were not the result of willful misconduct. He was also informed as to the type of evidence which would support his claim. The letter asked that the veteran submit any evidence or information he had which pertained to his appeal. In essence, it advised him to submit any evidence he might have in his possession or identify any evidence that might support his claim, although it did not specifically set forth that advice in those words. The February 2004 letter advised the veteran of each notice element required by 38 C.F.R. § 3.159(b)(1). See 38 U.S.C.A. § 5103(a). The February 2004 letter did not provide the veteran with notice regarding the effective date and disability evaluations available, should service connection be established for any claimed disability. As any service connection claims related to the motor vehicle accident at issue in this claim are barred by the decision herein, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Complete notice was provided prior to the final adjudication of the claim in the July 2007 supplemental statement of the case. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The notice provided met both the law and the spirit of VCAA. The timing of the notice did not affect the essential fairness of the adjudication or prejudice the veteran, since the record shows that VA obtained all available evidence related to the claim. See generally Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.2007), see Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In addition, the duty to assist the veteran to develop the claim is fulfilled. The veteran's service medical records, service personnel records, and all available records related to the accident have been obtained. Unfortunately, police reports were unavailable, as the Louisiana State Police destroys records after five years. The record shows that no line of duty investigation was conducted. VA afforded the veteran an opportunity to submit any additional evidence and to identify any relevant evidence. The record establishes the veteran was afforded a meaningful opportunity to participate in the adjudication of the claim. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). All requirements of the duty to notify the veteran and the duty to assist the veteran are met. Willful Misconduct The veteran sought service connection for multiple residuals of injuries related to the May 1988 accident. 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). The Military Police Desk Blotter for May 31, 1988, reports that the veteran was driving at a high rate of speed when he failed to make the turn at a curve in the roadway. He exited the road onto the shoulder, and travelled on the shoulder for 51 feet before re-entering the road, crossing both lanes of travel, and exiting the roadway on the opposite shoulder. He continued travelling for 91 feet before the vehicle struck a large tree. The police officer who pulled the veteran from the vehicle reported the strong odor of alcohol emitting from the veteran's person. Service medical records state that, following the motor vehicle accident, the veteran was initially "combative and intoxicated." The veteran only admitted to having one to two beers prior to driving that evening. Although the veteran contends that he only had one to two beers that evening, the Board affords his statement that he had not had more to drink little weight, as the police officer who pulled him from the vehicle and the medical personnel who treated the veteran immediately after the accident both reported that the veteran appeared to be intoxicated. Although it is unclear what the veteran's blood alcohol level was, the Board notes that the police officer and medical personnel are both competent to testify to the smell of alcohol and the veteran's behavior following the accident. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board has considered the statutory presumption afforded by 38 U.S.C.A. § 105(a) that an injury or disease incurred during active service was incurred in the line of duty. However, the preponderance of the evidence supports a finding that the veteran intentionally engaged in an act of wrongdoing. See 38 C.F.R. § 3.1(n). He admits that he drank one or two beers, and that he intentionally drove a motor vehicle after imbibing alcohol. Although there was no line of duty determination that the veteran's motor vehicle accident was the result of willful misconduct, the preponderance of the evidence supports a finding of willful misconduct, including the observations of the police officer and the medical personnel, and the description of the objective findings regarding the accident contained in the Military Police Desk Blotter. The veteran's statement that he had only one or two beers is the only evidence that is favorable to his claim. However, this statement is implausible in the face of other existing evidence. The veteran has not offered an alternative explanation for why he drove in a dangerous manner for an extended period of time, stopping only when his car hit a large tree. The Board finds that the veteran's statements regarding the accident are not credible as, by his own admission, he had drank at least one or two beers, and the remaining evidence suggests that he was intoxicated, which may have affected his ability to understand or recollect the events surrounding the motor vehicle accident. Additionally, there appears to be no other plausible explanation for the motor vehicle accident which was attributed to drinking at a high rate of speed, failing to negotiate a curve in the roadway, and driving after drinking alcohol. The Board finds that the veteran was intentionally intoxicated and operating a motor vehicle, which resulted in the May 1988 motor vehicle accident. Service connection for injuries related to this accident is barred as the accident was the result of the veteran's own willful misconduct... The preponderance of the evidence is against the veteran's claim. Because the evidence is not in equipoise, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable to warrant a more favorable result. Therefore, the claim cannot be granted. ORDER The injuries sustained by the veteran in a May 1988 motor vehicle accident were the result of his own willful misconduct and, thus, not sustained in the line of duty. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs