Citation Nr: 18160370
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-22 412
DATE:	December 26, 2018
ORDER
Entitlement to service connection for a right hip disability is denied.
FINDING OF FACT
The Veteran’s right hip disorder was the result of willful misconduct. 
CONCLUSION OF LAW
The criteria for service connection for a right hip disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.304.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1970 to August 1974, with service in the Navy Reserve and additional periods of inactive duty for training (INACDUTRA). 
On his June 2015 substantive appeal (VA Form 9) the Veteran indicated that he wanted a Board hearing. Thereafter, he was scheduled for an April 2017 hearing before the Board.  However, prior to his hearing date, he withdrew his request for a Board hearing.  See November 2018 Statement in Support of Claim.  Thus, the hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). 
Entitlement to service connection for a right hip disorder.
The Veteran seeks service connection for a right hip disorder.  Specifically, he asserts that he was in a motor vehicle accident on his way to Inactive Duty for Training and injured his right hip.  See April 2010 Veterans Application for Compensation and Pension.  
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection generally requires (1) medical evidence of a 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. 
However, no compensation will be paid if the disability resulting from injury or disease in service is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110. Direct service connection is 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. 38 C.F.R. § 3.301.
“Willful misconduct” means an act involving conscious wrongdoing or known prohibited action.  An action will be willful misconduct if it 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 will not per se constitute willful misconduct.  Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death.  A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs.  38 C.F.R. § 3.1(n).  However, VA regulations do not dictate that a service department finding that a veteran’s injury did not occur in the line of duty or that a Veteran’s actions constitute willful misconduct is binding on VA.  In such cases, VA must independently weigh the relevant facts to determine whether, for VA purposes, the injury occurred in the line of duty or the actions constitute willful misconduct. 
The Veteran has been diagnosed with residuals of a right acetabular fracture dislocation and subsequent multiple revised right total hip arthritis, status post right ankle fusion.  See November 2010 VA Examination report.  Nevertheless, after a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran’s willful misconduct was the proximate cause of his right hip disability.  In pertinent part, service treatment records and a civilian police report show that in March 1989 the Veteran was involved in a motor vehicle accident and was found intoxicated at the scene of the incident.  As a result of that incident, the Veteran sustained a right hip fracture.  He was transferred to a hospital, and the attending nurse drew a blood sample that showed a blood alcohol content (BAC) of .22 percent.  
In November 2010, the Veteran underwent a VA examination to determine the etiology of his right hip disorder.  The VA examiner documented that the Veteran sustained a single motor vehicle collision in March 1989, during which he sustained a right acetabular fraction dislocation.  Thereafter, the Veteran developed severe posttraumatic degenerative joint disease and has undergone right hip arthroplasty and subsequent hip revision surgeries.  Based on this information, the VA examiner concluded that the Veteran’s current right hip disorder was the direct result of the injuries he sustained in the March 1989 incident.  
In May 2011, the Regional Office (RO) in St. Petersburg, Florida, issued an administrative decision as to the Veteran’s “line of duty” status at the time of the March 1989 incident.  See April 2011 Third Party Correspondence.  After reviewing the VA file, civilian police report, and service treatment records, the RO concluded that the Veteran’s injuries from the March 1989 incident were the result of his own willful misconduct and were not sustained in the line of duty.
The Board acknowledges the Veteran’s contention that he was capable and competent to operate a motor vehicle properly at that time.  See September 2012 Statement in Support of Claim.  However, the law provides that, when drinking alcohol to the point of intoxication proximately and immediately results 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).  As the evidence contemporaneous to the accident supports that the Veteran was intoxicated while driving a car, which resulted in an accident and injuries to his right hip, the Board must conclude that his actions (and subsequent injuries) were the result of his willful misconduct.  As such, the motor vehicle accident does not constitute an in-service event upon which service connection can be granted for his current right hip disability.  The weight of the evidence demonstrates the Veteran’s right hip disability was due to his own willful misconduct and was not sustained in the line of duty.   The claim for service connection for a right hip disability must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  
 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	P. E. Metzner, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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