BVA9504296 
DOCKET NO.  93-09 059     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida

THE ISSUE

Entitlement to dependency and indemnity compensation (DIC).

ATTORNEY FOR THE BOARD

Suzie St. Vil, Associate Counsel

INTRODUCTION

The appellant in this case is the veteran's surviving spouse.
The record indicates that veteran served on active duty from June
1975 until his death in December 1991.

This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from an Administrative decision of
June 1992 by the St. Petersburg, Florida Regional Office (RO).
By letter dated in July 1992, the appellant was informed that her
claim for DIC benefits had been denied, based on a finding that
his death was the result of his own willful misconduct.  The case
was received at the Board in April 1993.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant has essentially contended that the veteran's death
should not be found to be due to willful misconduct because the
veteran was a non-drinker or a light drinker and because his
consumption of alcohol occurred during an Air Force sponsored
party.  She asserts that the stresses of assignment in a remote
area and peer pressure to consume alcohol should be considered.
Finally, she maintains that the veteran's character and
professionalism also should be considered.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that veteran's death was due to his own willful misconduct,
and not the result of injury incurred in the line of duty.
Entitlement to DIC benefits is thus not established.
FINDINGS OF FACT

1.  The veteran was pronounced dead on December 2, 1991, while on
active duty, due to acute alcohol intoxication and aspiration of
stomach contents into both lungs with pulmonary hemorrhages.

2.  The veteran's intoxication was the proximate cause of his
death.

CONCLUSION OF LAW

The veteran's death on December 2, 1991 was the result of his own
willful misconduct, and was not incurred in line of duty; DIC
benefits are thus not payable.  38 U.S.C.A. §§ 105, 1131, 1310,
5107 (West 1991); 38 C.F.R. §§ 3.1(m)(n), 3.301 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the appellant's
claim is "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991).  Murphy v. Derwinski, 1 Vet.App. 78
(1990); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  That is, we
find that the appellant has presented a claim which is not
implausible when her contentions and the evidence of record are
viewed in the light most favorable to that claim.  We are also
satisfied that all relevant facts have been properly and
sufficiently developed.

The Board notes that the controlling law and regulations provide
that when a service member dies after December 31, 1956, from a
service-connected disability, his surviving spouse or children
may have entitlement to DIC if the criteria set by law are met.
Further, an injury incurred during service which causes death is
generally regarded to be in the line of duty unless it was the
result of the service member's own willful misconduct.  38
U.S.C.A. §§ 105, 1131, 1310 (West 1991); 38 C.F.R. §§ 3.1(m),
3.301(a) (1993).  Willful misconduct means an act involving
conscious wrongdoing or known prohibited action; it also 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) (1993).

The record reflects that the veteran entered active duty in June
1975.  He remained on active duty until his death December 2,
1991, due to acute alcohol intoxication and aspiration of stomach
contents into both lungs with pulmonary hemorrhages.  He was 34
years of age at the time of death.

The claims folder contains a report of the Department of the Air
Force investigation into the circumstances of the veteran's
death, consisting of a line of duty investigation, an autopsy
protocol report, and excerpts of interviews from service persons
who associated with the veteran or had knowledge of the incident.
These records indicate that several of the people interviewed
were at a party with the veteran on the evening of November 30,
1991.  The records show that by approximately 10:00 p.m., the
veteran had already consumed 5 to 6 beers and 2 to 3 shots of
hard liquor.  It was further reported that the veteran was then
observed to drinks shots of "F-16", which was described as a
mixture of Bacardi 151 proof rum and Wild Turkey 101 proof
whiskey, at which point some of the individuals were becoming
concerned about his condition.  One service person reported that
the veteran started bragging about how much "F-16" he could
drink, at which point he made a bet with the veteran that he
would not be able to consume a flask (approximately 12 ounces) of
the mix.  It was further reported that several of the other
service members present were becoming very concerned, and someone
attempted to take and finally took the glass of "F-16" from the
veteran, but not before he had consumed approximately seven
ounces of the mixture.  At least one individual reported that he
had tried to talk the veteran out of drinking the "F-16," to no
avail.  Several of the other service members than took the
veteran to his building.  They took him to his room and placed
him on his bed faced down, with a trash can under his face, in
case he had to vomit.  According to the record, this was done
sometime after midnight on December 1, 1991.  The veteran was
found in his dormitory room on the morning on December 2, 1991
with his head immersed in the trash can and no signs of life.
One particular service member stated that he knew of no
financial, family or work problems in the veteran's life; he
described the veteran as a hard worker, who seemed to always be
in good spirits.  Several other service members reported that the
veteran had provided no indication of illness, depression,
emotional distress, or family, personal or marital problems.  A
service department review of the veteran's medical records
disclosed no pattern of illness, chronic physical problems, or
referrals for mental health treatment.

Among the above records was an autopsy protocol of an autopsy
conducted December 3, 1991, indicating that the veteran was found
dead in his barracks after heavy drinking of ethanol the night
before his demise.  The cause of death was reported as acute
alcohol intoxication and aspiration of stomach content into both
lungs with pulmonary hemorrhages.  The manner of death was
reported as accidental.  It was further noted that the veteran's
blood alcohol level at the time of death was 456 mg/dl. (0.456%).
The report of post mortem examination notes that the blood
alcohol content was approximately four and one-half times the
legal level of intoxication in many jurisdictions, and that such
a level was potentially lethal.

DD Form 261 shows that following the investigation, the service
department considered the veteran's death as a death which
occurred in line of duty.  The reasons for this finding are not
shown.

The Board recognizes that the Air Force has determined that the
veteran's death was in the line of duty.  A service department
finding of "in line of duty" is binding on the Department of
Veterans Affairs (VA) under 38 C.F.R. § 3.1(m), unless such
finding is patently inconsistent with the requirements of law
administered by the VA.

38 C.F.R. § 3.301(c) specifies that the definitions set forth in
§§ 3.1(m) and (n) apply except as modified by 38 C.F.R.
§ 3.301(c)(1) through (c)(3).  38 C.F.R. § 3.301(c)(2) clearly
requires that while the simple drinking of alcoholic beverage is
not of itself willful misconduct, if an individual drinks a
beverage to enjoy its intoxicating effects and such intoxication
results proximately and immediately in disability or death, the
disability or death will be considered the result of the person's
willful misconduct.  In this case, the records indicate that the
veteran consumed a substantial amount of alcohol, and was
observed to boast of his ability to consume an abundance of a
drink which is part 151 proof rum and 101 proof whiskey.  In
addition, when told that he had had enough, the veteran continued
to drink and proceed in a wager to consume even greater amounts
of this mixture.  On this record, we can discern no other reason
than that the veteran consumed alcoholic beverages to enjoy their
intoxicating effects.  Regardless of his past drinking history or
to what degree he had the capacity to consume alcoholic beverages
while remaining in control of his mental faculties, the service
department investigation reports demonstrate that he voluntarily
consumed a large quantity of highly intoxicating beverages and
that, in fact, he became highly intoxicated.  Whether or not he
knew specifically how intoxicating such beverages were, clearly
he must have known, generally, that consumption of alcoholic
beverages was likely to produce intoxicating effects, and he
chose to so indulge in such effects.

Moreover, the record unequivocally demonstrates that the
veteran's intoxication proximately resulted in death.  Thus the
provisions of 38 U.S.C.A. § 105, and 38 C.F.R. §§ 3.1(m),
3.301(a), (c) preclude a finding of "in line of duty," for
purposes of establishing service connection for the cause of
death.  Therefore, the service department finding of "in line of
duty" is patently inconsistent with the requirements of laws
administered by VA, and the Board finds that the service
department finding is not binding on VA.

Regarding the appellant's reference to the veteran's mental state
or stresses to which he may have been exposed, the Board observes
that the record contains no indication of any factors such as
illness or depression which might have impaired the veteran's
mental state on the night in question.  In any event, there is
nothing in the record to show that the veteran did not act
intentionally or voluntarily in consuming the alcoholic beverages
to a point of intoxication.  We also acknowledge the statements
submitted by the appellant attesting to the character and
professionalism of the veteran, which the Board does not dispute.
However, in view of the facts shown on the record, the law does
not permit payment of DIC benefits based on the veteran's death,
for the reasons already discussed.

Consequently, the Board concludes that the veteran's death did
not occur in line of duty and was the result of his own willful
misconduct.  Therefore, service connection for his death is not
appropriate, and entitlement to DIC benefits has not been
established.  38 U.S.C.A. §§ 105, 1131, 1310, 5107 (West 1991);
38 C.F.R. §§ 3.1, 3.301 (1993).

In reaching this decision, the Board has considered the doctrine
of granting the benefit of the doubt to the appellant but does
not find the evidence is approximately balanced such as to
warrant its application.  The preponderance of the evidence is
against the claim.  38 U.S.C.A. § 5107(b).

ORDER

The appeal is denied.

          D. C. SPICKLER
          Member, Board of Veterans' Appeals
          (CONTINUED ON NEXT PAGE)

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.