LUMBOSACRAL OR CERVICAL STRAIN

W. DAKNIS · 2026 · Case ID: A26034378

DENIED

Summary

The veteran, who served in the United States Marine Corps from June 1982 to September 1990, appeals the denial of service connection for chronic lumbar strain. The claim was reopened based on new evidence, including a private medical opinion, submitted after the prior final denial. The veteran asserted his current chronic lumbar strain resulted from a motor vehicle accident (MVA) during service in April 1988. Service treatment records indicated the Veteran was treated for lumbar strain from May to July 1988, following the MVA. However, the records also revealed the Veteran admitted to consuming alcohol prior to the MVA, and a blood alcohol test showed a level of .165%. The Board found the Veteran's assertion at the hearing that he had not been drinking to be not credible, given the contemporary medical records. The Board concluded that the Veteran's action of driving under the influence of alcohol constituted willful misconduct, which proximately caused the lumbar strain. Although the Veteran was not punished by his unit and no line of duty investigation was found in the record, the Board determined that these factors were not dispositive. The Board found that any service department finding of line of duty would be patently inconsistent with VA laws given the clear evidence of intoxication and the Veteran's admission to medical staff. Therefore, the Board found the lumbar strain was not incurred in line of duty and denied service connection.

Rationale

No other in-service event related to current chronic lumbar strain.; April 1988 MVA due to Veteran's willful misconduct (driving under influence).; Willful misconduct proximately caused back strain.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200825-106170

Full Decision Text

Citation Nr: A26034378
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 200825-106170
DATE: April 14, 2026

ORDER

Readjudication of the claim for service connection for chronic lumbar strain is warranted; to this limited extent only, the appeal is granted.

Entitlement to service connection for chronic lumbar strain is denied.

FINDINGS OF FACT

1. New evidence relevant to the claim for service connection for chronic lumbar strain was received after the prior final denial.

2. The Veteran engaged in willful misconduct, which proximately caused the injuries leading to the current chronic lumbar strain.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim for service connection for chronic lumbar strain have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156, 3.2501.

2. The criteria for establishing service connection for chronic lumbar strain have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from June 1982 to September 1990.

The rating decision on appeal was issued by the agency of original jurisdiction (AOJ) in May 2020. In a timely VA Form 10182 (Decision Review Request: Board Appeal) received in August 2020, the Veteran elected the Hearing option for this appeal. Therefore, the Board may consider only the evidence in the record at the time of the May 2020 decision and that submitted at or within 90 days after the hearing, which took place in May 2024. See 38 C.F.R. § 20.302. If evidence was submitted during the period after the AOJ issued the decision on appeal or after the 90-day period following the hearing, the Board did not consider it in this decision. See 38 C.F.R. §§ 20.300, 20.302, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. See id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Readjudication of the claim for service connection for chronic lumbar strain

Under the modernized review system, effective February 19, 2019, a claimant who disagrees with a prior VA decision may file a supplemental claim. 38 C.F.R. § 3.2501. If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the previously denied claim taking into consideration all of the evidence of record. Id. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id.

New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is evidence that tends to prove or disprove a matter in issue. Id. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. Id.

In April 1991, the AOJ denied a claim for service connection for a low back disability, finding that there was no evidence of any chronic back strain in service and the Veteran's back was normal on his separation examination. The Veteran did not appeal this decision, and it became final. See 38 C.F.R. §§ 19.20.

In September 2019, the Veteran submitted a claim for service connection for a back condition, which the AOJ failed to adjudicate in the subsequent rating decision. In February 2020, he submitted a supplemental claim for service connection for chronic lumbar strain. With this claim, the Veteran submitted a private medical opinion addressing a nexus between the current low back disability and the Veteran's service.

As new evidence relevant to whether the current chronic lumbar strain is related to service has been added to the record since the prior final denial, the Board finds readjudication of the
his separation examination. The Veteran did not appeal this decision, and it became final. See 38 C.F.R. §§ 19.20.

As new evidence relevant to whether the current chronic lumbar strain is related to service has been added to the record since the prior final denial, the Board finds readjudication of the claim for service connection for chronic lumbar strain is warranted in this case.

2. Entitlement to service connection for chronic lumbar strain

Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection 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 current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

However, to be entitled to disability compensation, the injury or disease from which the veteran's disability results must have been incurred in or aggravated by service "in line of duty." 38 U.S.C. §§ 105(a), 1131; 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 at almost any time during a period of active military, naval, or air service, unless it is shown that the disease or injury was due to the claimant's willful misconduct or, for claims filed after October 31, 1990, was a result of his abuse of alcohol or drugs. 38 C.F.R. § 3.1(m); 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 or 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).

The simple drinking of an alcoholic beverage is not of itself willful misconduct. 38 C.F.R. § 3.301(c)(2). The deliberate drinking of a known poisonous substance, or under conditions which would raise a presumption to that effect, will be considered willful misconduct. Id. 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. Id. 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).

A disability will be presumed to be incurred in service and not caused by the veteran's misconduct unless the government can establish, by the preponderance of the evidence, that the injury or disability was caused by the veteran's own willful misconduct. Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005).

Lastly, a service department finding that injury, disease, or death occurred in 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). 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. 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)).

Here, the Veteran asserts that his current chronic lumbar strain is related to a motor vehicle accident (MVA) he was involved in during service. In the May 2020 rating decision on appeal, the AOJ found: (1) that the Veteran has a current disability manifesting in chronic lumbar strain; (2) that there was an in-service event, injury, or disease, as the Veteran was treated from May 1988 to July 1988 for lumbar strain; and (3) that there is a nexus between the in-service event and the current disability, as a private opinion letter concluded the Veteran's MVA led to chronic back pain that worsened over time. The Board is bound by these favorable findings in the absence of clear and unmistakable error, and will not disturb them. See 38 C.F.R. § 3.104(c). The question for the Board is whether the Veteran is entitled to benefits for disabilities arising from the in-service MVA; i.e., whether the MVA was in line of duty.

The Veteran's service treatment records do not contain any complaints of symptoms affecting the lower back aside from the treatment from May 1988 to July 1988.

The service treatment records reflect that, in April 1988, the Veteran was wearing a seatbelt and driving a vehicle at approximately 70 miles per hour when he lost control of the vehicle around a curve. He was taken by ambulance to an emergency room for chest pain and multiple abrasions, where alcohol was noted on his breath. Blood tests revealed a blood alcohol level of 165.8 milligrams per deciliter, or .165% blood alcohol content. The Veteran was transferred and admitted to the Naval Hospital for treatment; the admission diagnoses were alcohol intoxication and rule-out cardiopulmonary contusion. The discharge summary completed by the treating physicians noted that the Veteran admitted to consumption of alcohol prior to the MVA, and that the laboratory examinations were remarkable for blood alcohol of 165 on admission.

As noted above, within two weeks of the MVA, the Veteran sought treatment for back pain, which was associated with the MVA by the treating physicians. In May 1988, he complained of pain and decreased range of motion on the right side of his neck down to his lower back. In June 1988, when the pain persisted, the Veteran was diagnosed with first degree muscle strain, and he continued to report muscle pain in the neck and back through July 1988.

At the May 2024 Board hearing, the Veteran testified that he was not drinking at the time of the April 1988 MVA. He asserted that he was driving his friends in a van with a full bar in the back to celebrate his friend's birthday, and that is why the police officers smelled alcohol at the scene of the MVA. The Veteran asserted that the MVA occurred because it was raining, he was not familiar with the back road on which he was driving, and the van skidded on a curve due to the rain. He reported that he was not speeding. The Veteran testified that he pled guilty to a civilian charge of driving under the influence, resulting in suspension of his license for 24 months and 100 hours of community service. The Veteran testified that he was not punished by his unit for the MVA; he asserted that, because he was not punished by his unit, the MVA should not be considered misconduct.

The Veteran also testified that the service
that is why the police officers smelled alcohol at the scene of the MVA. The Veteran asserted that the MVA occurred because it was raining, he was not familiar with the back road on which he was driving, and the van skidded on a curve due to the rain. He reported that he was not speeding. The Veteran testified that he pled guilty to a civilian charge of driving under the influence, resulting in suspension of his license for 24 months and 100 hours of community service. The Veteran testified that he was not punished by his unit for the MVA; he asserted that, because he was not punished by his unit, the MVA should not be considered misconduct.

The Veteran also testified that the service department completed an investigation and determined that his actions were not misconduct. The Veteran's service personnel and treatment records do not contain a line of duty investigation report regarding the April 1988 MVA. An administrative document in the personnel records listing offenses and punishments was blank; the most recent notation on this document indicated receipt of a second Good Conduct Medal in June 1988. The Veteran's proficiency and conduct scores remained similarly above average throughout his entire length of service.

After careful review of the evidence of record, the Board finds that service connection for chronic lumbar strain is not warranted in this case.

First, the Board notes the Veteran has not asserted that his current chronic lumbar strain is possibly related to any other event or injury in service. Likewise, the service treatment records do not indicate that the chronic lumbar strain could potentially be related to any other injury incurred during service. Therefore, the record indicates the MVA is the only in-service event related to the current chronic lumbar strain.

Next, the Board finds the April 1988 MVA was due to the Veteran's willful misconduct and therefore was not within line of duty. Specifically, the Board finds that the Veteran's action of driving under the influence of alcohol was willful misconduct that proximately led to his back strain.

The Board acknowledges the Veteran's assertion at the Board hearing that he had not been consuming alcohol the evening of the MVA, and that what the police officers smelled was alcohol that had been in the back of the vehicle. The Board finds this assertion is not credible. The contemporary records reflect that the Veteran's breath smelled of alcohol, that he admitted to medical staff he had consumed alcohol prior to driving, and that his blood test revealed the presence of alcohol at more than twice the legal limit for driving. The medical conclusion reflected in the contemporary records is that, upon admission to the hospital, the Veteran was intoxicated with alcohol.

While the simple drinking of an alcoholic beverage is not willful misconduct itself, the Board finds that, in this case, the Veteran was drinking alcohol to enjoy its intoxicating effects. He testified at the Board hearing that he was celebrating a friend's birthday; there are no contemporaneous records to refute this claim, such as, for example, medical records indicating alcohol addiction, self-medication with alcohol, or therapeutic use of alcohol.

Further, the Board finds that the Veteran's action of driving after drinking intoxicating beverages was intentional wrongdoing with knowledge or reckless disregard of its probable consequences. It is a driver's responsibility to know the applicable laws, including the prohibition against driving under the influence. The Veteran reported that he was charged with driving under the influence by local civilian authorities, indicating that this law was in effect at the time and that, despite this law, the Veteran drove at high speed after consuming alcohol to an extent that his blood alcohol level was more than twice the legal limit for driving.

The Board also finds that the Veteran's action of driving under the influence of alcohol resulted proximately in his back injury. The records do not reflect any intervening event between the action of driving under the influence, losing control of the car, and sustaining injuries causing low back pain. Although the Veteran asserted that the rain caused his vehicle to skid, the Board finds that it was the Veteran's action of driving under the influence that reduced his judgment such that he was driving at approximately 70 miles per hour in the rain around a curve in the road.

The Board acknowledges the Veteran's assertion that the MVA was not misconduct because he did not receive punishment from his unit. However, VA's definition of misconduct does not include any requirement that a military disciplinary action be taken for the misconduct. A unit may choose to punish or not punish a servicemember for any number of reasons unrelated to whether the action was conscious wrongdoing or known to be prohibited, such as the servicemember's past performance and conduct record, the unit's administrative manpower, or other needs of the unit. That the Veteran was not counseled, punished, or charged in a court-martial proceeding is not dispositive in this determination.

Finally, the Board acknowledges the Veteran's
around a curve in the road.

Finally, the Board acknowledges the Veteran's assertion that there was an investigation completed by the service department that found there was no misconduct. The Board further acknowledges that there is no line of duty investigation present in the record. The Board finds that the absence in the record of any line of duty investigation is not cause for remand in this case. See 38 C.F.R. § 20.802(a). The Board notes the presence of an unrelated line of duty finding for a knee injury in the Veteran's records, which indicates that, were a line of duty finding made for the April 1988 MVA, it would likely be included in the service personnel records present in the claims file. Further, and more importantly, given the clarity of the medical records regarding the Veteran's intoxication at the time of the MVA and the Veteran's testimony that he underwent civilian judicial proceedings related to the MVA, the Board finds that any service department finding that the MVA was in line of duty would be patently inconsistent with VA laws. As discussed in detail above, the Veteran's action of driving under the influence of alcohol was willful misconduct under the laws administered by VA, and the subsequent injury was caused by that willful misconduct. Therefore, the Board finds remanding the claim to search for a service department line of duty finding is not necessary in this case.

As the preponderance of the evidence establishes that the Veteran's action of driving under the influence of alcohol was willful misconduct, and as the willful misconduct proximately caused the lumbar strain, the Board finds that the lumbar strain was not incurred in line of duty. Therefore, service connection is not warranted for chronic lumbar strain.

Wendy Daknis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Josey

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.

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