Citation Nr: 0736612 Decision Date: 11/21/07 Archive Date: 12/06/07 DOCKET NO. 04-28 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether the veteran's death was the result of willful misconduct. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from April 1998 to January 2002. The veteran died while he was in service. This matter is before the Board of Veterans' Appeals (Board) from a July 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which determined that the veteran's death was due to willful misconduct and, therefore, not in the line of duty. The RO issued a notice of the decision in July 2003, and the appellant timely filed a Notice of Disagreement (NOD) in October 2003. Subsequently, in July 2004 the RO provided a Statement of the Case (SOC), and the appellant timely filed a substantive appeal. Although the appellant had requested a Board hearing on this matter, none was held, as she failed to appear at the scheduled time. As she has not provided good cause for her failure to report or requested that the hearing be rescheduled, the Board deems her hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2007). FINDINGS OF FACT The veteran died from blunt head and torso trauma as a result of a single car accident, caused by his driving under the influence of alcohol; excessive speed was also noted in the line of duty determination; no other factors or causes of the fatal accident were noted. CONCLUSION OF LAW The appeal that the veteran was in the line of duty at the time of his death is denied as a matter of law. 38 U.S.C.A. § 105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.301 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). That is, the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the instant case the facts are not in dispute, and resolution of the appeal depends upon an interpretation of the laws and regulations pertaining to willful misconduct. Therefore, because no reasonable possibility exists that would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). II. Law & Regulations Where a veteran's death occurs while on active duty, the death is presumed to have occurred in the line of duty. 38 U.S.C.A. § 105. Direct service connection, however, may be granted 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 abuse of alcohol or drugs. 38 C.F.R. § 3.301. The line of duty presumption is rebuttable where the "preponderance of the evidence" indicates the veteran's death was due to his own willful misconduct. Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). In addition, "[a] service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs." 38 C.F.R. § 3.1(m). Also, such misconduct "involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences," but a mere technical violation of police regulations or ordinances will not per se constitute willful misconduct." 38 C.F.R. § 3.1(n)(1), (2). Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n)(3). According to 38 C.F.R. § 3.301(c)(2), the simple drinking of alcoholic beverage is not of itself willful misconduct. If, however, 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. III. Analysis In the instant case, the facts are not in dispute. The evidence of record reveals that the veteran died from blunt force trauma to the head and torso from a single car accident, which occurred in Texas, where he had been driving under the influence of alcohol and at a high rate of speed. A blood alcohol level of 0.22 was noted. See March 2002 Line of Duty Determination. The Line of Duty Determination noted that police reports indicated that the veteran lost control of his vehicle and that "alcohol was a contributing factor" in the crash. Excessive speed was also noted. No other factors or causes for the fatal accident are apparent in the line of duty determination or anywhere else in the record. The Board determines that such drinking and driving constitutes "willful misconduct" within the meaning of 38 C.F.R. § 3.1(n), as such is an act "involving . . . known prohibited action" according to Texas law. See Tex. Penal Code Ann. §§ 49.01(2), 49.04 (2001) (defining criminal intoxication as "having an alcohol concentration of 0.08 or more" and classifying driving while intoxicated as a Class B misdemeanor); see also Yeoman v. West, 140 F.3d 1443, 1446 (1998) (recognizing that the "Board's consideration of . . . state law was a proper part of its interpretation of willful misconduct under the standards mandated by the very regulations defining that term and its relation to drunkenness"). As noted by the United States Court of Appeals for the Federal Circuit, 38 C.F.R. § 3.1(n) "clearly implies that the violation of positive authority such as state statutory or decisional law is relevant to the consideration of what does constitute willful misconduct" and "clearly contemplates the violation of state penal statutes as a highly relevant, if not dispositive, consideration." Yeoman, supra. Because the veteran violated the Texas Penal Code when he drove with a blood alcohol level of 0.22, he committed willful misconduct during the car accident, which led to his death. The appellant has offered no evidence to refute the fact that the veteran partook in such willful misconduct, nor has she otherwise contested the fact that the veteran's intoxication led to his death. Instead, as reflected in her July 2004 substantive appeal, she merely has asserted that the veteran "had a drinking problem that the Air Force was aw[are] of. He was let out of AA and behavior health less than a month maybe even weeks before," and her accredited representative, in his November 2007 Brief, merely urges that the Board should not view the veteran's conduct "as willful, especially when considered with the fact that the Air Force did not provide the needed support to enhance [the veteran's] ability to cope with his problem drinking." The record does not suggest that any other factor aside from the veteran's driving while intoxicated and driving at excessive speed led to the car accident, which caused his death, and in the absence of such evidence calling into question either factor in the veteran's death-causing accident, or even a contention in that regard, appeal must be denied as a matter of law. 38 U.S.C.A. § 105 38 C.F.R. §§ 3.1, 3.301; Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The veteran's death was the result of his own willful misconduct and, therefore, the benefit sought on appeal is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs