Smith v. Derwinski

While I concur with the majority’s decision to remand the ease to the Board of Veterans Appeals, I write separately to emphasize that despite the lack of evidence in this case regarding what occurred at the precise moment of the accident, the totality of the circumstances surrounding the accident are sufficient to justify a finding of willful misconduct. The record shows that Smith chose to take his motorcycle ride after an evening of drinking, R. 23, 25-29, and while there were no conclusive blood alcohol readings, the emergency room doctor who treated Jeffery Coley reported detecting a…