Veteranclaims’s Blog

December 19, 2017

Crediford v. Shulkin, No. 2016-1386(Decided: December 18, 2017); Scope of Federal Circuit appellate jurisdiction; willful misconduct; 38 U.S.C. § 105(a); 38 C.F.R. § 3.1(n)(3); service department findings present in the record;

Excerpt from decision below:

“Presumptions
Injuries incurred during military service are presumed to be “incurred in the line of duty.” 38 U.S.C. § 105(a). This presumption can be rebutted if the injury was “caused by the veteran’s own willful misconduct or abuse of alcohol or drugs.” Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); see 38 U.S.C. §§ 105(a), 1110.
“Willful misconduct means an act involving conscious wrongdoing or known prohibited action.” 38 C.F.R. § 3.1(n). “It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.” Id. § 3.1(n)(1). The regulations provide that the consumption of alcohol does not of itself constitute willful misconduct, but if a service member
consumes alcohol to enjoy its intoxicating effects, and the intoxication “proximately and immediately” results in injury, the injury is considered to have resulted from
willful misconduct. 38 C.F.R. § 3.301(c)(2). Willful misconduct, even if found to be present, “will not be determinative unless it is the proximate cause of injury, disease,
or death.” 38 C.F.R. § 3.1(n)(3).”

========================

“Mr. Crediford has not received appropriate application by the Department of
Veterans Affairs of the regulations for adjudicating service connection claims when service department findings are present in the record. To that end, we vacate the judgment of the Veterans Court, and remand for further proceedings on the question of application of 38 C.F.R. § 3.1(m)–(n) to the service department procedures and rules herein.”

=========================

United States Court of Appeals for the Federal Circuit
______________________
MELVIN A. CREDIFORD,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1386
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2018, Chief Judge Robert N.
Davis.
______________________
Decided: December 18, 2017
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, for claimant-appellant.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., ALLISON KIDD-MILLER; BRIAN D. GRIFFIN,
BRYAN THOMPSON, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
2 CREDIFORD v. SHULKIN
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
NEWMAN, Circuit Judge.
Veteran Melvin A. Crediford appeals the decision of the Court of Appeals for Veterans Claims (“Veterans Court”), upholding the Board of Veterans’ Appeals (“Board”) denial of service connection for his cervical spine condition.1 Two issues are presented: first, the scope of Federal Circuit appellate jurisdiction as to the disputed issues of law and fact; and second, whether the Veterans Court applied the correct legal standards in reviewing the factual findings affecting Mr. Crediford. We vacate the
Veterans Court’s judgment and remand for further proceedings.

BACKGROUND
Mr. Crediford served with the United States Coast
Guard from August 1983 to August 1985, and again from
January 1990 to March 1991. On January 20, 1985,
Mr. Crediford worked from 6:30AM to 6:30PM in the galley at the Grays Harbor Station of the Westport, Washington, Coast Guard base. He then visited the
Veterans of Foreign Wars Club in Westport, where he drank alcoholic beverages. After leaving the Club he was in an automobile accident, when his car did not negotiate a sharp turn, and rolled over. No other person or vehicle was involved.
Mr. Crediford was first taken to a hospital. He was then taken to a police station, where a breath test regis-
1 Crediford v. McDonald, No. 14-2018, 2015 WL
5092588 (Vet. App. Aug. 31, 2015) (“Vet. Ct. Op.”).
CREDIFORD v. SHULKIN 3

tered a blood alcohol level of 0.12 percent, three and a half
hours after he last drank alcohol. Vet. Ct. Op. at *1. The
police entered a charge of driving while under the influence
of alcohol.
Mr. Crediford reported the accident to the Coast
Guard, and the local commanding officer at the Grays
Harbor Station issued a Report dated April 19, 1985. The
Report stated that fatigue and alcohol were responsible
for the accident, and concluded that Mr. Crediford’s
“injuries were not a result of his own misconduct and
were incurred in the line of duty.” J.A. 75–80 (Report of
Chief Warrant Officer 3 Bruce J. Spano, Investigation of
Injuries Sustained by SA Melvin A. Crediford USCG, in
Westport, WA on 20 Jan 85 (Apr. 19, 1985)). The Report
included findings and conclusions, stating that SA Crediford
did not commit willful misconduct and the injury was
incurred in the line of duty. The Report recommended:
1. That no disciplinary action be taken against
SA Crediford.
2. That all members of Station Grays Harbor
undergo the Coast Guard’s Driver Perception
Course as soon as possible.
3. That the Coast Guard’s policy on seatbelts and
drinking and driving again be disseminated to
the Station Grays Harbor crew and that it be
incorporated into the quarterly training
schedule.
J.A. 80.
The April 19, 1985 Report, including the “findings of
fact, opinions, and recommendations of the investigating
officer,” was approved in an “ACTION OF THE
CONVENING AUTHORITY” on May 7, 1985. The Convening
Authority stated in the Action, “I have reviewed
the general circumstances surrounding this incident with
the crew of Station Grays Harbor. All personnel were
4 CREDIFORD v. SHULKIN

made aware of the potential for serious injury or death as
a result of driving while fatigued and/or intoxicated.”
J.A. 81. The Convening Authority further stated that
“reviewed in detail were the serious consequences for
service members involved in findings of misconduct and
not in the line of duty,” that “the entire crew [of Station
Grays Harbor] has completed the Coast Guard Driver
Perception course,” and that “SA Crediford has been
counseled on the Commandant’s policy relating to alcohol
abuse.” Id. J.F.C. Duncan signed the Action.
In the ensuing police proceeding, Mr. Crediford pleaded
guilty to a charge of negligent driving and paid a fine.
He left the Coast Guard in August 1985, for reasons of
family hardship. He reenlisted in 1990.
On December 13, 1985, the Commander of the Thirteenth
Coast Guard District issued a Memorandum, in
which he referred to a “finding” by the Commandant of
the Coast Guard, dated November 20, 1985,2 that was
said to have “approved a finding that injuries sustained
by SA Crediford on 20 January 1985 were ‘not incurred in
the line of duty and were due to his own misconduct.’”
J.A. 37 (Commander, Thirteenth Coast Guard District
(T.F. McGrath), SA Melvin A. Crediford, USCG (Dec. 13,
1985)).
In June 2004, Mr. Crediford filed a claim for compensation
based on “severe pain,” a condition that he stated
“has gradually increased” over time. J.A. 39–48.
Mr. Crediford filed a “Statement In Support of Claim,”
stating that he was seeking compensation, in part, for
“chronic pain due to spinal & soft tissue injury caused
from an automobile accident.” J.A. 53.
2 The November 1985 document containing the
finding by the Commandant is not in the record before us.
CREDIFORD v. SHULKIN 5

The Regional Office (“RO”) denied compensation, ruling
that “[d]isabilities resulting from Melvin Arthur
Crediford’s automobile accident on January 20, 1985
involving a DUI, are considered to be the result of his own
willful misconduct and are determined to have not occurred
‘in the line of duty.’” J.A. 57, 60–62. The RO’s decision also stated that “[t]he veteran’s service medical records do not contain a line of duty determination regarding
this accident.” J.A. 58. The decision identifies the December 1985 Memorandum from the Commander of the Thirteenth District, but does not mention the April
1985 Report and Action of the Convening Authority. J.A. 57.
Mr. Crediford states that he did not submit the April 1985 Report and its subsequent approval by the Convening Authority to the VA until after the Regional Office
decision was issued. Appellant Br. 4. Mr. Crediford also stated, in the hearing before the Board, that the December 1985 Memorandum, referencing the November 1985
finding by the Commandant, was issued “post-discharge, without notice that an LOD investigation was ongoing and not disclosed. To my knowledge the investigation
was closed, as per the copy that I received at the conclusion of my unit command’s investigation.” J.A. 129–30.
On appeal to the Board, the Board found “that the preponderance of the evidence is against the Veteran’s claim.” J.A. 144. The Board found the “January 1985 motor vehicle accident was caused by the Veteran’s alcohol consumption and constitutes willful misconduct. As such, injuries sustained in that accident were not incurred
in the line of duty and the appeal is denied.” J.A. 146. The Board “note[d] that a blood alcohol percentage of 0.08 or more raises a presumption that the person was under the influence of intoxicating liquor,” and that it “was not rebutted in this case.” J.A. 143, 145.
6 CREDIFORD v. SHULKIN

Mr. Crediford appealed to the Veterans Court. The court affirmed, stating that the Board “provided an adequate statement of reasons or bases” and that the Board’s
finding that Mr. Crediford’s injury was caused by his “willful misconduct” was “plausible in light of the record as a whole.” Vet. Ct. Op. at *3. Neither the Board nor the Veterans Court resolved the discrepancy between the local commanding officer’s and the Convention Authority’s finding of no willful misconduct, and the later contrary finding by a different officer.
On this appeal, Mr. Crediford stresses this distinction, and argues that the local commanding officer’s and Convening Authority’s decision should prevail because
“the document which purported to be a Commandant’s approval of a finding that the injuries sustained by Mr. Crediford were ‘not incurred in the line of duty and were
due to his own misconduct’ was not a line of duty determination.” Appellant Br. 15. Mr. Crediford continues that “[t]he November 20, 1985 document was not in the
record before either the Board or the court below.” Id.
“Therefore, as a matter of law because the Board made no
determination that [the April 1985] service department’s
line of duty determination was ‘patently inconsistent with
the facts and laws administered by the Department of
Veterans Affairs,’ the only report of record that Mr.
Crediford’s ‘injuries were not a result of his own misconduct
and were incurred in the line of duty,’ was binding on
the VA.” Appellant Br. 16 (emphasis in brief) (record
citation omitted) (quoting in part 38 C.F.R. § 3.1(n)).

DISCUSSION
Review and Jurisdiction
38 U.S.C § 7292(a) authorizes Federal Circuit review
of the “validity of a decision of the [Veterans] Court on a
rule of law or of any statute or regulation . . . or any
interpretation thereof . . . that was relied on by the Court
in making the decision.” This court also has jurisdiction
CREDIFORD v. SHULKIN 7

“to interpret constitutional and statutory provisions, to
the extent presented and necessary to a decision.”
38 U.S.C. § 7292(c). Furthermore, the “Federal Circuit
shall decide all relevant questions of law, including interpreting
constitutional and statutory provisions.”
38 U.S.C. § 7292(d)(1). However, unless a constitutional
issue is presented, the Federal Circuit “may not review
(A) a challenge to a factual determination, or (B) a challenge
to a law or regulation as applied to the facts of a
particular case.” 38 U.S.C. § 7292(d)(2).
Presumptions
Injuries incurred during military service are presumed to be “incurred in the line of duty.” 38 U.S.C. § 105(a). This presumption can be rebutted if the injury was “caused by the veteran’s own willful misconduct or abuse of alcohol or drugs.” Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); see 38 U.S.C. §§ 105(a), 1110.
“Willful misconduct means an act involving conscious wrongdoing or known prohibited action.” 38 C.F.R. § 3.1(n). “It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its
probable consequences.” Id. § 3.1(n)(1). The regulations provide that the consumption of alcohol does not of itself constitute willful misconduct, but if a service member consumes alcohol to enjoy its intoxicating effects, and the intoxication “proximately and immediately” results in injury, the injury is considered to have resulted from willful misconduct. 38 C.F.R. § 3.301(c)(2). Willful misconduct, even if found to be present, “will not be determinative unless it is the proximate cause of injury, disease, or death.” 38 C.F.R. § 3.1(n)(3).
A “service department finding” that an injury was not
the result of willful 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.”
8 CREDIFORD v. SHULKIN

38 C.F.R. § 3.1(n). Section 3.1(m) similarly states that a
“service department finding” that an injury occurred
within the “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.” Mr. Crediford states that the finding
of his commanding officer in the April 1985 Report, and
its adoption by the Convening Authority, is such a “service
department finding,” and should have been binding
on the Department of Veterans Affairs. Appellant Br. 14–
16. He challenges the later November 1985 reversal by a
higher officer at a different location, as well as the reversal’s
absence from the record—contending it is only referenced
by the December 1985 Memorandum.
Mr. Crediford also argues that the Board and the Veterans
Court created a new per se standard or presumption
of willful misconduct based solely on blood alcohol
level, contrary to VA regulation. Appellant Br. 21–24;
38 C.F.R. § 3.1(n)(2) (“Mere technical violation of police
regulations or ordinances will not per se constitute willful
misconduct.”). The Secretary responds that the Board
and the Veterans Court did not create a new per se
standard for misconduct, but simply weighed all of the
evidence including the local commanding officer’s conclusion
that there was not willful misconduct. Appellee Br.
14–15.
We have appellate jurisdiction “[i]n cases where the
material facts are not in dispute and the adoption of a
particular legal standard would dictate the outcome of a
veteran’s claim.” Conley v. Peake, 543 F.3d 1301, 1304
(Fed. Cir. 2008); see also Morgan v. Principi, 327 F.3d
1357, 1361 (Fed. Cir. 2003) (amendments to 38 U.S.C.
§ 7292(a) authorize Federal Circuit jurisdiction on a “rule
of law”). Thus we have reviewed the question of whether
the Veterans Court adopted a new legal standard based
on blood alcohol level. We have also considered whether
the later reversal of the local commanding officer’s and
CREDIFORD v. SHULKIN 9

Convening Authority’s assessment raised any due process
concerns. See Cushman v. Shinseki, 576 F.3d 1290, 1291,
1296–98 (Fed. Cir. 2009) (“[W]e find that a veteran alleging
a service-connected disability has a due process right
to fair adjudication of his claim for benefits.”).
I
Mr. Crediford states: “There was no evidence of record
that Mr. Crediford’s alcohol consumption and excessive
speed was the cause of the January 1985 motor vehicle
accident.” Appellant Br. 18 (emphasis in brief).
Mr. Crediford argues that the Board created and then
relied on a presumption that intoxication, measured by
blood alcohol, constituted per se willful misconduct. He
states that 38 C.F.R. § 3.301(c)(2) requires finding that
intoxication “proximately and immediately” caused the
event, and that in his case fatigue was found by the
commanding officer to have contributed to the event.
The Board referred to Mr. Crediford’s charge of “negligent
driving to which he pled guilty,” and his admission
of alcohol consumption and speed in excess of the posted
limits. J.A. 144, 146. The Board found “that the preponderance
of the evidence shows that the Veteran was
driving his car at an excessive rate of speed after consuming
alcohol at the time of the accident. These actions
proximately and immediately caused his car accident.”
J.A. 146.
The Veterans Court “reject[ed] Mr. Crediford’s argument
that the Board overlooked evidence of fatigue.” Vet.
Ct. Op. at *2. “Despite evidence of fatigue, however, the
Board concluded that a preponderance of the evidence
weighed against Mr. Crediford’s claim.” Id. (citations
omitted). The Veterans Court stated that “the Board
provided an adequate statement of reasons or bases, and
its finding that Mr. Crediford’s injury is a result of willful
misconduct is plausible in light of the record as a whole.”
Id. at *3. The Veterans Court affirmed the Board’s deci

10
CREDIFORD v. SHULKIN

sion “that Mr. Crediford’s injury is a result of his willful
misconduct.” Id. However, the question is not whether
this finding is supported, but whether the Board had
authority to ignore the Service Department’s findings.
II
Mr. Crediford argues that, under 38 C.F.R. § 3.1(m)–
(n), the April 1985 Report by the commanding officer at
his duty station, soon after the accident, is “binding on the
VA.” Appellant Br. 12–16; Reply Br. 6–7. The April 1985
Report of the initial investigation, approved by “ACTION
OF CONVENING AUTHORITY” on May 7, 1985, determined
that his “injuries were not a result of his own
misconduct and were incurred in the line of duty.”
J.A. 79, 81.
Mr. Crediford argues that the initial investigation and
the subsequent Action of Convening Authority in April
and May 1985, constitute the only proper line-of-duty
determination, and that the conflicting finding issued
months later, in the November 1985 document, after his
tour of duty had ended in August, is not a proper line-ofduty
determination. J.A. 37. Mr. Crediford continues
that the November 1985 document containing the contrary
finding by the Commandant “was not in the record
before either the Board or the court below.” Appellant
Br. 15. Mr. Crediford argues that the Board and the
Veterans Court erred in law, by giving controlling weight
to this later ruling that he was not able to rebut, while
ignoring his commanding officer’s contemporaneous
finding of no willful misconduct and that his injuries were
incurred in the line of duty.
Neither the Board nor the Veterans Court resolved
this conflict, though they mentioned it. The Board stated:
“In an April 1985 Memorandum from the Commanding
Officer of the Coast Guard Station Grays Harbor, it was
noted that . . . the Veteran’s injuries were not a result of
his own misconduct and were incurred in the line of duty.”
CREDIFORD v. SHULKIN 11

J.A. 144. However, the Board continued, “In December
1985, the Commander of the Thirteenth Coast Guard
District issued a memorandum whereby it was determined
that the injuries the Veteran sustained in January
1985 were not incurred in the line of duty and were due to
his own misconduct.” J.A. 144. The Board did not reconcile
the conflicting determinations issued by the Coast
Guard. See 38 U.S.C. § 7104(a) (requiring that the Board
shall consider “all evidence and materials of record and
applicable provisions of law and regulation”).
The regulations provide that “a service department
finding” that an injury was not the result of willful 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); see also
§ 3.1(m) (stating determinations that an injury “occurred
in the line of duty” will be binding “unless patently inconsistent
with the requirements of law”). The regulations
recognize that the Service Department is in the best
position to assess willful misconduct and line of duty
actions of its Service. See United States v. Yellow Cab
Co., 338 U.S. 338, 341 (1949) (“Findings as to the design,
motive and intent with which men act depend peculiarly
upon the credit given to witnesses by those who see and
hear them.”) (discussing then-Fed. R. Civ. P. 52 (stating
“due regard shall be given to the opportunity of the trial
court to judge of the credibility of the witnesses”)).
We conclude that the Board erred in simply making
its own findings on the question of willful misconduct
when there were service department findings before it.
Mr. Crediford argues that the local commander’s finding
should control, as opposed to remote Coast Guard authority.
The answer to this conflict was not to ignore it, for
the VA regulations assign “binding” determination of
“willful misconduct” and “line of duty” to the Service
Department. 38 C.F.R. § 3.1(m)–(n). The Coast Guard’s
12 CREDIFORD v. SHULKIN

determinations, made in 1985 when the accident occurred,
must be addressed. It was error for the Board to
make its own findings of the facts of line of duty and
willful misconduct.3
“[A]n agency is bound by its own regulations.” Wagner
v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004)
(citing Service v. Dulles, 354 U.S. 363, 388 (1957)). “It has
long been established that government officers must
follow their own regulations, even if they were not compelled
to have them at all . . . .” Voge v. United States,
844 F.2d 776, 779 (Fed. Cir. 1988). This court has also
held that “[v]eteran’s disability benefits are nondiscretionary,
statutorily mandated benefits,” and applicants as
well as recipients enjoy a due process right to those benefits.
Cushman, 576 F.3d at 1297–98. Mr. Crediford has
not received appropriate application by the Department of
Veterans Affairs of the regulations for adjudicating service
connection claims when service department findings
are present in the record. To that end, we vacate the
judgment of the Veterans Court, and remand for further
proceedings on the question of application of 38 C.F.R.
§ 3.1(m)–(n) to the service department procedures and
rules herein.
VACATED AND REMANDED
COSTS
3 The Secretary now states that at the time of the
automobile accident in 1985 the Coast Guard was operating
not as a “service department,” but was statutorily
operating as part of the Department of Transportation
under 14 U.S.C. § 3(a) (1985). Appellee Br. 27 n.4. We
note, as does the Secretary, this aspect was not raised in
either the Board or the Veterans Court, and in all events,
does not change the rationale of the regulations.
CREDIFORD v. SHULKIN 13
Costs to Mr. Crediford.

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