Appealed from: United States Court of Veterans Appeals
Before Rich, Michel, and Schall, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge.
Kurtis Yeoman appeals the January 8, 1997, decision of the Court of Veterans Appeals affirming the determination of the Board of Veterans' Appeals (the "Board") that he was not entitled to benefits because his injuries in an automobile accident were caused by his own willful misconduct in driving while drunk and exhausted from lack of sleep and therefore were not incurred in the line of duty and hence are non- compensable. Yeoman v. Brown, No. 95-851 (Ct. Vet. App. Jan. 8, 1997), and In re Yeoman, No. 93-06 782 (Bd. Vet. App. July 26, 1995). Yeoman asserts on appeal that the Court of Veterans Appeals erroneously affirmed the decision of the Board, primarily because the Board unlawfully based its decision on Iowa state law. The appeal was submitted for our decision following oral argument on January 7, 1998. In response to Yeoman's arguments, we hold that the Court of Veterans Appeals did not commit reversible error because (1) the Board's reference to Iowa state law was a proper part of its interpretation of "willful misconduct" under the federal regulations, rather than an adoption of Iowa state law, and thus that reference neither exceeded the Board's authority by creating law, nor violated the publication-by- notice requirements of the Freedom of Information Act (the "FOIA"), 5 U.S.C. § 552 (1994), the notice and comment rule-making procedures of the Administrative Procedure Act (the "APA"), 5 U.S.C. § 553 (1994), or the special requirements for "official notice" of "new evidence" of the APA, 5 U.S.C. § 556(e) (1994); and (2) the willful misconduct regulations of the Department of Veterans Affairs (the "DVA") are not unconstitutionally vague. We therefore affirm.
Yeoman served on active duty with the Navy from May 1990 until he was discharged in March 1992. On November 3, 1990, at about 3:50 a.m., Yeoman was involved in a single car accident while driving home. Injuries he sustained in that accident left him quadriplegic. By his own admissions, Yeoman had consumed six to eight beers over the course of the evening prior to the accident and had not slept for approximately forty-five hours before the accident itself. During the hours before the accident, while consuming alcohol and while in a self-induced sleep- deprived state, Yeoman chose to drive 250 miles from the Naval Training Center in Great Lakes, Illinois, to his home in Iowa. Shortly thereafter, he chose to drive to another town and then to a friend's house before starting the return trip to his home just before 3:50 a.m.
The results of tests of his blood alcohol levels conducted in the first few hours after the accident ranged from 0.111 to 0.162 grams of alcohol per deciliter of blood. The physician who examined and questioned Yeoman in the hours after the accident stated that it was obvious that Yeoman had consumed at least a few cans of beer. Additionally, several of the people who had been with him in the hours just prior to the accident testified that he appeared very tired. Yeoman himself admitted that he knew that he was very tired but chose to drive home anyway.
On October 10, 1992, the Department of Veterans Affairs Regional Office (the "RO") concluded that Yeoman's injuries had been proximately caused by his own willful misconduct, and that, therefore, his injuries had not been incurred in the line of duty. The payment of veterans benefits for disabilities resulting from a veteran's own willful misconduct is prohibited by 38 U.S.C. §§ 105(a) and 1110. Accordingly, the RO denied Yeoman veterans disability benefits.
Yeoman appealed the decision to the Board. Pursuant to the rule enunciated in Thurber v. Brown, 5 Vet. App. 119, 126 (1993), the Board informed Yeoman that it intended to rely on evidence beyond that contained in the most recent Statement of the Case or Supplemental Statement of the Case. The Board told him that it intended to rely on two medical treatises: Ivan Diamond, Alcoholism and Alcohol Abuse, in Cecil Textbook of Medicine 44-46 (J.B. Wyngaarden et al. eds., 19th ed. 1992) and J.D. Parkes, Sleep and Its Disorders 36 (1985). The Board letter did not, however, inform Yeoman that the Board intended to refer to Iowa state law. Yeoman was given sixty days to submit any evidence, argument, or comment objecting to the Board's use of the two publications. Yeoman responded that he could be prejudiced by the use of these medical treatises.
On July 26, 1995, the Board determined that the preponderance of the evidence demonstrated that Yeoman's injuries were the result of his own willful misconduct. In re Yeoman, No. 93-06 782 (Bd. Vet. App. July 26, 1995). In its opinion, the Board made reference to both the Iowa penal statute that provides the legal limit for intoxication and Iowa state case law that provides a three-factor test for determining whether a person's falling asleep while driving resulted from a wanton and willful disregard for the safety of others.
On January 8, 1997, the Court of Veterans Appeals affirmed the Board's decision, holding that Yeoman had not demonstrated that the Board had committed either factual or legal error. Yeoman v. Brown, No. 95-851 (Ct. Vet. App. Jan. 8, 1997). On February 24, 1997, the Court of Veterans Appeals denied Yeoman's motion for reconsideration and his motion for review by a panel. In the same decision, the Court of Veterans Appeals dismissed as premature Yeoman's motion for review by the full court. Judgment was entered by the Court of Veterans Appeals as of the date of that decision, and Yeoman subsequently brought this timely appeal. Discussion
This court's appellate jurisdiction and scope of review over decisions of the Court of Veterans Appeals are sharply limited by the very statute that establishes them. See 38 U.S.C. § 7292 (1994). This court may review a decision of the Court of Veterans Appeals with respect to the validity of any statute or regulation (other than a refusal by the Court of Veterans Appeals to review the schedule of ratings for disabilities adopted under 5 U.S.C. § 1155), or any interpretation thereof that was relied upon by the Court of Veterans Appeals. See id. § 7292(a). Legal determinations by the Court of Veterans Appeals are subject to de novo review by this court. See Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). This court may set aside any regulation or regulatory interpretation relied upon by the Court of Veterans Appeals which is unconstitutional, violative of statute, procedurally defective, or otherwise arbitrary. See id. This court, however, is precluded from reviewing determinations of fact or applications of a law or regulation to particular facts, except to the extent necessary to resolve a constitutional issue. See 38 U.S.C. § 7292(d)(2) (1994). Here, our jurisdiction is not in doubt as Yeoman makes only legal arguments about alleged legal errors in the reliance of the Court of Veterans Appeals on its interpretation of the willful misconduct regulations set forth in 38 C.F.R. §§ 3.1(n) and 3.301.
The present appeal requires this court to determine if the Court of Veterans Appeals erred with respect to its legal premises in affirming the Board's decision that Yeoman's injuries were proximately caused by his own "willful misconduct." Yeoman argues first that the Board committed several legal errors relating to its references to Iowa state law and second, that, in any event, the willful misconduct regulations are unconstitutionally vague. I.
The Board's consideration of Iowa state law was a proper part of its interpretation of willful misconduct under the standards mandated by the very regulations defining that term and its relation to drunkenness. Sections 3.1(n) *fn1 and 3.301 *fn2 of Title 38 of the Code of Federal Regulations, taken together, set forth the various legal standards to be used in order to ...