Citation Nr: 0736872 Decision Date: 11/23/07 Archive Date: 12/06/07 DOCKET NO. 06-32 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether new and material evidence has been received to determine whether an injury sustained in October 1973 was due to misconduct. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from January 1972 to January 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2005 and August 2005 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2007, the veteran appeared before the undersigned Veterans Law Judge and gave testimony in support of his claim. FINDINGS OF FACT 1. The RO determined in January 1977 that the injury sustained by the veteran on October 15, 1973 was incurred as the result of willful misconduct, and so informed the veteran that same month. The veteran did not appeal. 2. In June 2004, the RO found that no new and material evidence had been received to reopen the veteran's claim to determine if the injury sustained by the veteran on October 15, 1973 was incurred as the result of willful misconduct, and so informed the veteran that same month. The veteran did not appeal. 3. The evidence submitted subsequent to the June 2004 decision does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The June 2004 RO decision that found that no new and material evidence had been received to determine whether an injury sustained in October 1973 was due to misconduct is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. The evidence submitted in support of the attempt to reopen the claim to determine whether an injury sustained in October 1973 was due to misconduct is not new and material, and this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should give us everything you've got pertaining to your claims. In the instant case, the veteran received notification prior to the initial unfavorable agency decisions in July and August 2005. The RO notice letter dated in May 2005 informed the veteran that he could provide evidence to support his claim to reopen or the location of such evidence and informed him that he could supply evidence to VA himself. The notice letter notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send records pertinent to his claims, or to provide a properly executed release so that VA could request the records for him. In addition, the letter explained what types of evidence qualified as "new" and "material" evidence, and essentially informed him of the reason why his claim was previously denied (i.e. due to a finding of willful misconduct). See Kent v. Nicholson, 20 Vet. App. 1 (2006). It is the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. This notice must also include the information pertinent to the relevant disability rating and an effective date for the award of benefits that would be assigned if service connection is awarded. A letter properly informing the veteran in this regard was sent in a February 2007. Any defect with respect to the timing of this letter is harmless, as the claim has been denied, rendering the downstream elements of the assignment of a disability rating and an effective date moot. VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Records have been submitted by the veteran and he has had hearing before the Board. While the record shows that the veteran has applied to the Department of the Navy to have his military records corrected, the record does not show that a determination was made, an the veteran did not address this matter at his May 2007 hearing before the Board. Further, as discussed below, the service records already show that the veteran had an honorable discharge. The Board is satisfied that all relevant facts have been adequately developed to the extent possible at this time; no further assistance to the veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Whether New and Material Evidence has been Received to Determine Whether an Injury Sustained in October 1973 was Due to Misconduct To reopen a previously denied Board decision, or an RO decision that has become final, new and material evidence must be received. 38 U.S.C.A. §§ 5108, 7104, 7105; 38 C.F.R. 3.156(a). Regardless of the RO's actions, the Board must make an independent determination on whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). "New" evidence means existing evidence not previously submitted to agency decisionmakers, that is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); 38 C.F.R. § 3.156. Service connection is warranted where the evidence establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). An injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct or the result of his or her abuse of alcohol or drugs. See 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). Furthermore, VA's General Counsel has ruled that direct service connection for a disability which results from a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits where the claim was filed after October 31, 1990. See VAOGCPREC 7- 99; VAOGCPREC 2-98. "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge 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. 38 C.F.R. § 3.1(n) (2007). The simple drinking of alcoholic beverage is not in and of itself willful misconduct. However, if, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability, the disability will be considered the result of the veteran's willful misconduct. 38 C.F.R. § 3.301(b) and (c)(2) (2007). Although the consumption of alcohol, in and of itself, does not per se constitute willful misconduct, it does if it is later determined that it was the proximate cause of injury. In a January 1977 administrative decision, the RO concluded that the veteran's injuries sustained when he was involved in a motorcycle accident on October 15, 1973, were due to his own willful misconduct. The RO, in a rating decision in June 2004, found that no new and material evidence had been received to reopen the veteran's claim. These decisions are final, as the veteran did not submit a timely notice of disagreement with either decision, and may not be reopened on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002); § 20.1103 (2007). The evidence of record at the time of the January 1977 RO determination included the veteran's service medical records, including the report of hospitalization from October 15, 1973 to October 23, 1973, a police report of the accident, a report of VA examination in July 1976, showing residuals of injuries sustained in the motorcycle accident, and an April 1976 VA Report of Accidental Injury completed by the veteran. In the April 1976 Report of Accidental Injury, the veteran stated that at the time of the accident, he had just gotten off work and was returning back to his quarters. He denied that alcohol was involved in the accident. The service records showed that the veteran was involved in a motorcycle accident on October 15, 1973, and sustained blunt trauma to the right flank, later diagnosed as renal contusion. The narrative summary from the hospitalization reported that the trauma was not due to misconduct by the veteran. A clinical record dated October 15, 1973 noted that veteran's statement that he had a couple of beers. The police report showed that the veteran was driving 60 miles per hour in a residential neighborhood when he left the road and traveled approximately 225 feet before striking a fence. The report showed that the accident was the result of reckless driving, willful and wanton, and that the driver had been drinking. The RO found that the veteran was not entitled to compensation benefits for the injury sustained since it was caused by his willful misconduct. The veteran was notified of the decision in January 1977, and he did not timely disagree. That decision became final. In September 2003, the veteran attempted to reopen his claim. At that time, he submitted a copy of the October 1973 Narrative Summary. Also associated with the claims file were VA outpatient treatment records dated in 2002 and 2003, which included treatment for various disorders, including for a right flank mass in 2002. In June 2004, the RO issued an administrative decision which found that new and material evidence had not been received to reopen the veteran's claim, and so informed him that same month. He did not submit a notice of disagreement to that decision, and it became final. In February 2005, the veteran requested service connection for residuals of a motorcycle accident, and this appeal ensued. Evidence submitted since the June 2004 decision includes VA outpatient treatment records dated from 2002 to 2006, duplicate copies of service records, an April 2006 letter from the Department of the Navy and an attached copy of an application from the veteran for a correction of his military record, and his hearing testimony before the Board. Some of the VA outpatient treatment records submitted are duplicates of records previously considered and therefore are not new. Other VA records show treatment for various disorders including right flank discomfort. While these are new since they were not previously of record, they are cumulative since they reflect complaints and treatment which had been documented previously. Further, records suggesting that the veteran has residuals of the in-service injury are not material as they do not raise a reasonable possibility of substantiating his claim, which was denied on the grounds of willful misconduct. The service records are duplicative and therefore are not new. The application to the Department of the Navy is new; however the application, standing alone is not material to the claim. Further, the Board notes that the character of the veteran's service is honorable and that the in-service narrative summary noted that his renal contusion was incurred in the line of duty. It does not appear that any "correction" to his military record, if made, would raise a reasonable possibility of substantiating the claim. Also now of record is the transcript of the Travel Board hearing held in May 2007. During this hearing, the veteran testified that on the evening in question, he had worked all day and that after work he went to the enlisted men's club to meet with others and have a sandwich and refreshments before going home. He stated that he had a few drinks. He stated that when he left the base to go home he had to pass through the gates and show his identification, and that if he had been intoxicated, the guards would have stopped him. These statements are cumulative of the evidence of record at the time of the 1977 and 2004 final decisions, and therefore, not new. Evidence of record at that time of those decisions showed that the veteran reported having a couple of beers, but denied that alcohol was involved in the accident. In this case, no new evidence has been submitted indicating that the events of October 15, 1973 were not as described in the contemporaneous evidence documented above. In fact, the testimony tends to substantiate the contemporaneous finding that the veteran had been drinking at the time of the accident. As new and material evidence has not been received, the claim is not reopened. See 38 C.F.R. § 3.156 (2007). ORDER As new and material evidence has not been submitted to reopen the claim to determine whether an injury sustained in October 1973 was due to misconduct, the appeal is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs