BONE MALUNION OR NONUNION

C. CRAWFORD · 2026 · Case ID: 26004631

MIXED

Summary

The veteran, who served in the U.S. Air Force from May 1982 to August 1988, appeals the denial of service connection for residuals of a gunshot wound to the left fifth metacarpal and the denial of an initial compensable disability rating for bilateral hearing loss. The Board denied service connection for the gunshot wound residuals, finding the injury was not incurred in the line of duty due to the veteran's willful misconduct. The Board cited the veteran's reckless handling of a firearm, including discharging it from a moving vehicle with a child present and while under the influence of alcohol, as constituting willful misconduct proximately causing the injury. The Board accorded significant weight to contemporaneous police and military investigation reports, as well as the veteran's own admissions and testimony, which indicated his actions were deliberate and showed a reckless disregard for probable consequences. The Board found the veteran's statements regarding alcohol consumption and the nature of his misconduct not credible. For the bilateral hearing loss claim, the Board denied a compensable rating based on the August 2023 VA audiological examination. The audiometric results indicated normal hearing acuity (Level I) in both ears, leading to a non-compensable rating under Diagnostic Code 6100. The Board found the veteran's assertions of hearing loss credible but noted that the objective medical findings from the VA examination, which followed rating schedule requirements, were binding. The Board also noted that the audiometric results did not reflect an exceptional pattern of hearing loss warranting a higher rating. The claim for right ear hearing loss prior to August 23, 2023, was remanded for further development to interpret January 2012 audiometric testing results.

Rationale

Injury not incurred in line of duty; Willful misconduct found; Reckless handling of firearm; Alcohol influence noted; Contemporaneous evidence supports misconduct

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-36 124A

Full Decision Text

Citation Nr: 26004631
Decision Date: 04/16/26 Archive Date: 04/16/26

DOCKET NO. 10-36 124A
DATE: April 16, 2026

ORDER

Entitlement to service connection for residuals, status post gunshot wound to the left fifth metacarpal, is denied.

Entitlement to an initial compensable disability rating for bilateral hearing loss, beginning August 23, 2023, is denied.

REMANDED

Entitlement to an initial compensable disability rating for service-connected right ear hearing loss prior to August 23, 2023, is remanded.

FINDINGS OF FACT

1. The injuries that the Veteran sustained from his June 1988 gunshot wound were not within the line of duty, but instead were the result of the Veteran's intentional act of removing a firearm, that was previously unknown to him, from its stored location, to clean/clear/fire it, while in a moving vehicle, with knowledge of or wanton and reckless disregard for the probable consequences of his actions.

2. Beginning August 23, 2023, the Veteran's bilateral hearing loss has been manifested by no worse than Level I hearing loss in his right ear and Level I hearing loss in his left ear.

CONCLUSIONS OF LAW

1. The injuries sustained from the June 1988 gunshot wound were not in the line of duty but were resultant from and proximately caused by the Veteran's willful misconduct. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304.

2. The criteria for a compensable rating for bilateral hearing loss, beginning August 23, 2023, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the U.S. Air Force from May 1982 to August 1988.

These matters come before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held in December 2011 by a Veterans Law Judge (VLJ) who is no longer employed by the Board, and in April 2020, the Veteran requested a new Board hearing.

In August 2022, the Veteran testified at a Board hearing as to all issues noted above. A transcript of the hearing is associated with the record.

Concerning the issue of entitlement to a higher rating for right ear hearing loss prior to August 23, 2023; and entitlement to a higher rating for bilateral hearing loss, thereafter, most recent, in a March 2024 decision, the Board remand this issue for further development. In November 2024, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case and the matter is properly before the Board.

Concerning the issue of entitlement to service connection for residuals of a gunshot wound, most recently, in February 2023, the Board denied the claim. The Veteran appealed that Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2025, the United States Court of Appeals for Veterans Claims (Court) vacated the February 2023 Board decision and remanded the appeal back to the Board for an adequate statement of its reasons and bases and to conduct a factual analysis of whether the Veteran's actions qualified as willful misconduct.

1. Entitlement to service connection for residuals, status post gunshot wound to the left fifth metacarpal.

The Veteran seeks entitlement to service connection for residuals of a gunshot wound. Specifically, he contends that he did not engage in misconduct and that the Air Force did not comply with its own policies and procedures during the line of duty investigation; therefore, VA should not rely on the Air Force findings that his injuries were not in the line of duty. See August 2016 Statement.

Legal Framework

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during
did not comply with its own policies and procedures during the line of duty investigation; therefore, VA should not rely on the Air Force findings that his injuries were not in the line of duty. See August 2016 Statement.

Legal Framework

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order for a veteran to be entitled to disability compensation, however, such as service connection, the injury or disease from which the veteran's disability results must have been incurred in or aggravated by active military, naval, or air service "in line of duty." 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. §§ 3.1(k), 3.1(m), 3.301(a).

"In line of duty" means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.1(m).

An injury or disease is incurred "in the line of duty" when the injury or disease occurs at almost any time during a veteran's active service, even while on leave, unless it is shown that the disease or injury was due to the claimant's willful misconduct. 38 U.S.C. § 105; Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

VA has defined willful misconduct as an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with the knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n)(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).

The phrase "willful misconduct," in its ordinary meaning, entails three requirements for the Board to find the phrase applicable. The Board must (1) identify conduct; (2) the identified conduct must be misconduct; and (3) the identified misconduct must be willful. Martin v. McDonald, 761 F.3d 1366, 1369 (Fed. Cir. 2014).

The applicable regulations also exclude from the line of duty any injury or disease incurred during active military, naval, air, or space service that was the result of the abuse of alcohol or drugs. 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(a). The simple drinking of alcoholic beverages is not of itself "willful misconduct." However, if, in 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 abuse of alcohol is defined as the use of alcoholic beverages over time, sufficient to cause disability to, or death of, the user. 38 C.F.R. § 3.301(d). VA's General Counsel has concluded that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPG
the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2).

The abuse of alcohol is defined as the use of alcoholic beverages over time, sufficient to cause disability to, or death of, the user. 38 C.F.R. § 3.301(d). VA's General Counsel has concluded that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). VA General Counsel precedent opinions are binding on the Board. See Brooks v. Brown, 5 Vet. App. 484 (1993).

The proximate cause analysis under 38 C.F.R. § 3.1(n) requires a determination of whether the causal link between the willful misconduct and the claimed injury is so attenuated that the consequence is more aptly described as mere chance. See Carter v. McDonough, 46 F.4th 1356 (quoting Paroline v. United States, 572 U.S. 434, 445 (2014)). "Proximate cause" is defined as "[a] cause that directly produces an event and without which the event would not have occurred." Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010) (citing Black's Law Dictionary 213 (7th ed. 1999)). In other words, "the proximate cause of an event is that act or omission which, in natural and continuing sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred." MicroStrategy Inc. v. Bus. Objects, S.A., 429 F.3d 1344, 1361 (Fed. Cir. 2005).

A Service Department finding that the injury, disease, or death occurred in the line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993). Likewise, a Service Department finding that injury, disease, or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. 38 C.F.R. § 3.1(n).

The definition of "patently" that is applicable for present purposes is simply "plain: obvious." Webster's New College Dictionary 805 (3rd ed. 2001). Thus, in order to disregard a Service Department line-of-duty finding, VA must show that the finding is plainly and obviously-not just arguably-inconsistent with the facts and the laws administered by VA. In other words, VA must show that the Service Department determination of no willful misconduct was plainly and obviously wrong on the law administered by VA and wrong on the facts that are relevant to that law.

When the evidence of record includes Service Department findings, it is error for the Board to make its own findings of facts of line of duty and willful misconduct without addressing the Service Department findings before it. See Crediford v. Shulkin, 877 F.3d 1040, 1046-47 (Fed. Cir. 2017). "The regulations recognize that the Service Department is in the best position to assess willful misconduct and line of duty actions of its Service." Id. (citing United States v. Yellow Cab Co., 338 U.S. 338, 341 (1949)).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record but does not have to discuss each piece of evidence). Thus, while the Board considered all evidence of record, in its decision below, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. If the positive and negative evidence is in approximate balance, which includes
there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record but does not have to discuss each piece of evidence). Thus, while the Board considered all evidence of record, in its decision below, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. If the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, reasonable doubt is resolved in favor of the claimant. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 U.S.C. § 5107(b).

Factual Background

On June 16, 1988, the Veteran suffered a gunshot wound to his left hand, while traveling towards Luke Air Force Base (Luke AFB).

The Veteran was treated at the Luke AFB emergency department for a gunshot wound to his left hand. An emergency care and treatment noted, dated June 16, 1988, indicates that the Veteran reported that he was "checking out a [pistol ... it] went off. Hit left hand/fingers" and "Threw gun out the window." The treating physician noted that the Veteran had ETOH (alcohol) on his breath. The Veteran underwent finger surgery on June 21, 1988, for debridement of the wound and external fixation of the finger.

A June 17, 1988 police report from the Maricopa County Sheriff's Office indicates that the Veteran shot himself while traveling on Interstate 1-10. The police report states that the Veteran "was being disorderly by discharging a handgun. During this, (the Veteran) accidently shot himself in the left hand." The Veteran then threw the gun out the window.

The police report, to include a statement from the Veteran's girlfriend, indicates that the Veteran had fired his own firearm twice into the air from a moving vehicle, at which time, he then asked for and retrieved his girlfriend's firearm from under her seat (the driver's seat) and, in the process, discharged the weapon inside the moving vehicle. The Veteran's girlfriend also stated that she told the Veteran not to fire the weapons because her child was in the vehicle. The Veteran reported to police that he had not been to the weapons range in "awhile so he fired his .45 caliber (pistol) into the air to clear the weapon." A spent .45 cartridge was found in the car.

On June 17, 1988, the Veteran found the gun along Interstate I-10 and turned it into the Security Police.

The Veteran was charged with disorderly conduct for reckless discharge of a deadly weapon by civilian authorities. The offense is listed as "misconduct with weapon."

In an initial June 1988 Line of Duty determination, completed four days after the incident, a hospital medical officer indicated that the Veteran was under the influence of alcohol at the time of the incident. He recommended that the Veteran be found to not be in the line of duty.

In an August 1988 Line of Duty investigation, the investigating officer found that the Veteran's injury was sustained from an accidental discharge of a firearm and incurred in the line of duty.

In September 1988, the reviewing authority recommended reversal of the findings of the investigating officer, and substituted findings that the Veteran's injuries were not incurred in the line of duty. Specifically, the reviewing authority found that

The totality of the circumstances in this instance shows by a preponderance of the evidence that [the Veteran] did not exhibit a high degree of care when handling the derringer which wounded him. The gun was not his own, the vehicle was moving, a child was present, and [the Veteran] was under the influence of alcohol. Under such conditions, his handling of the derringer constituted a reckless disregard for his own safety and for that of the others present in the car.

The injuries sustained by [the Veteran] were incurred as a result of his own reckless conduct. Thus, his actions constitute misconduct under AFR35-67; that misconduct was the proximate cause of his injuries. I, therefore, find that [the Veteran's] injuries were incurred not in line of duty due to his own misconduct.

In October 1988, the approval authority approved the findings of the reviewing authority and determined that the Veteran's injuries were not in the line of duty.

In December 198
, and [the Veteran] was under the influence of alcohol. Under such conditions, his handling of the derringer constituted a reckless disregard for his own safety and for that of the others present in the car.

In October 1988, the approval authority approved the findings of the reviewing authority and determined that the Veteran's injuries were not in the line of duty.

In December 1988, the Veteran submitted a claim for service connection and a report of accidental injury. He asserted that at the time of incident he was not on duty, but was returning to base to retrieve his vehicle. His girlfriend was driving. He marked "yes" to the question of whether alcoholic intoxicants were involved in this incident and explained that "[w]e fixed a glass of mixed alcohol to drink between us. The incident occurred within 10 mins after leaving residence." The Veteran further stated that he was "handling his girlfriend's firearm to check and make sure it was safe when it went off.

A review of the Veteran's DD Form 214 indicates that during service he completed basic military training.

In an April 1989 administrative decision, VA determined that the Veteran's claimed residuals, status post gunshot wound to the left fifth metacarpal, were not incurred in the line of duty under the laws administered by VA. In making that determination, the RO noted that the Veteran had engaged in willful misconduct, as demonstrated by his firing weapon under the influence of alcohol and being charged with disorderly conduct. The RO also noted that the Service Department had also found that the Veteran's injuries were not in the line of duty due to his own willful misconduct.

In August 2014, the Veteran submitted a statement in support of his claim. He claims that the investigating officer asserted that the Veteran exercised poor judgment, but that such did not fit the definition of willful misconduct under Air Force regulations. Moreover, he asserts that as the line of duty determination in this case was completed after his discharge from service, VA cannot consider it in its deliberation as to whether the Veteran's injuries were the result of willful misconduct.

In August 2022, the Veteran testified at a Board hearing before the undersigned VLJ. The Veteran asserted that he was taught that rules and regulations matter. He asserted that he made a poor judgment decision to fire a weapon outside of a moving car and that alcohol was in the car. However, he asserts that there is no evidence alcohol was consumed prior to his receiving the gunshot wound.

Discussion

It is not in dispute that the Veteran has residuals of a left finger injury he sustained in service. The sole question before the Board in this matter is whether the injury was incurred in line of duty.

Based on a careful review of all the evidence and applicable legal criteria, the Board finds that the injuries sustained from the June 1988 gunshot wound and any residuals thereof did not occur in the line of duty, as such injuries resultant from and were proximately caused by the Veteran's willful misconduct.

In this regard, under the framework set out by the Federal Circuit in Martin, the Board must inquire as to the three ordinary-meaning requirements of willful misconduct contained in the regulation under 38 C.F.R. § 3.1(n). Martin v. McDonald, 761 F.3d 1366, 1369 (Fed. Cir. 2014).

First, the Board finds the conduct that resulted in and proximately caused the Veteran's current residual disabilities of the gunshot wound was, in fact, his reckless firing of his weapon out the window, followed by his intentional ask for and taking of a weapon that he was unfamiliar with from under his girlfriend's seat, and the reckless cleaning/clearing/firing of this weapon that directly led to the 'accidental discharge' and injury to his left hand.

Next, the Board finds that this conduct is without question willful criminal misconduct.

In making this finding, the Board has accorded great probative weight to the contemporaneous records in this case, including the witness statements, line of duty investigative report, civilian police records, and medical records, noted above. These records are reliable and, therefore, highly probative because they were created contemporaneously in time with the incident in question, when the memories of witnesses and participants were fresh and when the Veteran's actions and the cause and extent of his injuries could be directly observed by witnesses and physicians. This evidence, in its totality, supports a finding that the Veteran's conduct
the 'accidental discharge' and injury to his left hand.

Next, the Board finds that this conduct is without question willful criminal misconduct.

The Board notes that the Service Department medical report and line of duty determination found that the Veteran's injuries were not in the line of duty and were the result of his own willful misconduct. As such, the provisions of 38 C.F.R. § 3.1(m)-(n) that bind the VA to the Service Department's findings do not apply in this case. However, the Service Department line of duty determination is highly probative as it was based on a contemporaneous investigation that took into account statements from witnesses who were present at the time of the incident (and assessed their credibility) and the medical records of the Veteran's injury. It includes plausible explanations for its finding that the Veteran's injuries were not in the line of duty and due to his own willful misconduct. Moreover, the Board finds this Service Department finding highly probative as it is supported by the police record, and contemporaneous Veteran and witness statements, which indicate that the Veteran, while acting in a disorderly manner, shot himself.

The Board also considered that the Veteran had qualified with his assigned weapon, see DD Form 214 (indicating that the Veteran has basic training), and would have received training on proper means to ensure that a weapon is cleared, which does not include doing so in a moving vehicle or engaging in "horseplay" while handling weapons. See, for example, Air Force Manual (AFMAN) 31-129, USAF Small Arms and Light Weapons Handling Procedures. Furthermore, he would have received instruction on the proper handling of firearms and would have been aware of the consequences of handling a firearm in an unsafe manner (i.e., while in a moving vehicle with civilians nearby), to include the possibility of accidental discharges. See October 2024 Appellant's Brief (Court) (indicating that he was familiar with proper handling of a weapon: "checking a weapon for safety ... is standard is all weapons training." His actions are thus inconsistent with this training and clearly involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Moreover, the misconduct in this case was not a mere technical violation of police regulations or ordinances. See generally, Ariz. Rev. Stat. 13-3107 (2025).

Based on the above, the Board finds the Veteran's actions that led directly to his gunshot wound constitute willful misconduct involving, i.e., were an act of conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n).

Finally, willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. See Carter, supra; 38 C.F.R. § 3.1(n)(3).

Here, the Board finds the civilian investigation and the line of duty report made by competent and credible police investigators and military officials, provide the Board with competent, credible and highly probative evidence for the purpose of establishing by overwhelming evidence that the residual disabilities relating to the Veteran's gunshot wound were caused by and proximately due to his own willful misconduct.

In this regard, the Veteran received the claimed injuries as a direct result of his willful and unlawful actions of recklessly handling a firearm and causing the discharge of a firearm in a moving vehicle. In other words, the Veteran's misconduct, the handling of a weapon that was unfamiliar to him while in a moving vehicle, resulted in a "natural continuous sequence" of an accidental discharge and the resultant injuries; without his willful misconduct, he would not have been shot.

To be clear, the Board finds that the Veteran deliberately removed the weapon from where it was stored and acted with knowledge of or wanton and reckless disregard for the probable consequences, by mishandling the firearm, and it was reasonably foreseeable that he could suffer an injury from an accidental discharge as a result.

Given all the above, the Board finds that the in-service injury was proximately caused by an act of willful misconduct by the Veteran. As a result, the Board finds the residuals of his gunshot wound injury are not deemed to have been incurred in line
in a moving vehicle, resulted in a "natural continuous sequence" of an accidental discharge and the resultant injuries; without his willful misconduct, he would not have been shot.

Given all the above, the Board finds that the in-service injury was proximately caused by an act of willful misconduct by the Veteran. As a result, the Board finds the residuals of his gunshot wound injury are not deemed to have been incurred in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.301.

In making this determination, the Board would like to address the Veteran's lay contentions regarding why he believes his actions did not constitute willful misconduct and thereby should be granted service-connection for residuals of his left-hand gunshot wound.

First, as noted in the February 2023 Board decision, to the extent that the Veteran asserts that the Service Department did not follow its internal policies and procedures, and that the line of duty determination is not in line with the laws of Arizona, see October 2024 Appellant Brief (Court), his recourse is with the Air Force.

Next, the Veteran has argued that there is no evidence that he had consumed alcohol prior to the incident, and even so consuming alcohol is not illegal as he was not driving a vehicle. See October 2024 Appellant's Brief (Court). The Board does not find these statements credible. The Veteran admitted to bringing alcohol into the vehicle; the treating ER physician noted that the Veteran had ETOH (alcohol) on his breath; and, the Service Department concluded in the line of duty investigation that given the totality of the circumstances the Veteran was under the influence of alcohol at the time of misconduct. The Board is mindful that the Service Department is in the best position to assess willful misconduct and line of duty actions of its Service members. Given the totality of the evidence of record finds that the Veteran's statement with regard to his alcohol consumption in pursuit of his claim is not credible and of little, if any probative value; the contemporaneous evidence is of more probative weight, and indicates that the Veteran had consumed alcohol prior to the incident.

Such contentions regarding the Veteran's alcohol consumption, however, are not pertinent. The willful misconduct in this case is the Veteran's deliberate and reckless handling of a firearm which led directly to and proximately caused his injuries from a gunshot wound. As such, the Board in its discussion above, did not discuss at length the Veteran's additional deliberate act of carrying his pistol and bringing alcohol into a moving a vehicle, with a child in the backseat, and recklessly firing said weapon out the window, despite his basic firearm training. While the simple drinking of alcoholic beverages is not of itself "willful misconduct," if, in 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).

Next, the Board acknowledges the Veteran's argument that his misconduct was not willful, but rather simply reflects poor judgment. See October 2024 Appellant Brief (Court). The Board is not persuaded. As noted above, the evidence supports a finding that the Veteran had the requisite training and knowledge regarding the safe operation of firearms, such that his act of removing a firearm from its stored location to clean, clear, or use the firearm, while in a moving vehicle, was deliberate conduct that could reasonably foreseeably result in harmful consequences, to include injury to himself or others. Thus, the Board finds that the Veteran's misconduct rises to the level of being a conscious wrongdoing or known prohibited action, that involved deliberate or intentional wrongdoing with the knowledge of or wanton and reckless disregard of its probable consequences, i.e., was willful misconduct.

Finally, to the extent that the Veteran alleges to not having been subject to any administrative or punitive actions with relation to this misconduct, see October 2024 Appellant Brief (Court), the Board notes that the Service Department may choose not to bring charges for certain acts, but this does not necessarily mean that the act is not considered willful misconduct.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for residuals, status post gunshot wound to the left fifth metacarpal is warranted. Rather, the evidence persuasively weighs against the claim. The benefit
the knowledge of or wanton and reckless disregard of its probable consequences, i.e., was willful misconduct.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for residuals, status post gunshot wound to the left fifth metacarpal is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

2. Entitlement to a compensable disability rating for bilateral hearing loss, beginning August 23, 2023.

The Veteran generally seeks a higher disability rating for bilateral hearing loss. He contends that his speech is elevated and he has a need to turn the volume up to hear anything. See August 2023 VA Examination.

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id.

Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations.

Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

In this case, the Veteran was afforded VA audiological examination in August 2023. Puretone thresholds, in decibels, were at worst, as follows:

HERTZ

1000 2000 3000 4000

RIGHT 35 40 35 30

LEFT 30 30 30 30

The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 35 decibels for the right ear and 30 for the left ear. Maryland CNC testing revealed speech recognition ability of 96 percent for the right ear and 100 percent for the left ear.

Applying the results to Table VI, the findings yield a numeric designation of Level I in each ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100.

The Board notes that the puretone thresholds for the Veteran's left ear and/or right ear do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a), that is, the puretone threshold each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. As such, a higher rating based on an exceptional pattern of hearing loss is not warranted.

There are no other audiometric testing results during the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. In addition
percent) disability rating under Diagnostic Code 6100.

There are no other audiometric testing results during the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. In addition, there are no private or VA treatment records indicating a disability more severe than reflected by the August 2023 VA examination.

The Board has carefully considered the Veteran's asserted difficulties with hearing and in no way discounts his assertions that his hearing loss should be rated higher. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the valid VA examination of record was conducted in accordance with the requirements for a hearing impairment examination for VA purposes and are adequate. See 38 C.F.R. § 4.85(a). Furthermore, the Veteran does not allege that the VA examination is inadequate. Thus, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions of hearing loss, provide the most persuasive evidence regarding the limitations posed by the Veteran's bilateral hearing loss.

It must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann, 3 Vet. App. at 345. In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the competing evidence is not in approximate balance, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, entitlement to a compensable disability rating for bilateral hearing loss is denied.

REASONS FOR REMAND

1. Entitlement to an initial compensable disability rating for service-connected right ear hearing loss prior to August 23, 2023.

The Veteran generally seeks a higher disability rating for bilateral hearing loss. Most recently, in a March 2024 decision, the Board remanded this issue for further development.

Specifically, VA treatment records showed that the Veteran underwent hearing testing in January 2012 which showed normal hearing from 250-3000 Hertz, but mild to moderate hearing loss at 4000 Hertz. However, the exact pure tone thresholds at the 1000 Hertz through 4000 Hertz levels were not included in the VA treatment records. As such, a remand was warranted for the AOJ to attempt to obtain the January 2012 audiometric testing results.

In April 2024, the AOJ associated the January 2012 audiometric testing results with the record. Unfortunately, the puretone thresholds in the January 2012 audiometric testing is only presented on a graph. These results require interpretation from a VA examiner. Accordingly, another remand is warranted.

The matter is REMANDED for the following action:

(Continued on next page)

1. Forward the Veteran's claims file to an appropriate VA clinician
the 1000 Hertz through 4000 Hertz levels were not included in the VA treatment records. As such, a remand was warranted for the AOJ to attempt to obtain the January 2012 audiometric testing results.

The matter is REMANDED for the following action:

(Continued on next page)

1. Forward the Veteran's claims file to an appropriate VA clinician to provide an opinion that interprets the January 2012 audiometric testing results associated with the claims file on April 11, 2024.

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Kaufer, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

Analyze in VA Law Explorer