Citation Nr: 0005701 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-09 253A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Commission ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty for training from June to August 1991 and on active duty from February 1992 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1994 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that determined that the veteran's death was the result of his own willful misconduct and not incurred in the line of duty. The case was previously before the Board in May 1997, when it was remanded to obtain additional records and determine whether or not the appellant had status as a claimant. By administrative decision in August 1998, the appellant was recognized as the veteran's surviving spouse. Additional written statements were received at the Board in June 1999. The appellant waived the RO's consideration of this evidence. Therefore, the case need not be returned to the RO for consideration and the issuance of a supplemental statement of the case. 38 C.F.R. § 20.1304(c) (1999). FINDINGS OF FACT l. Sufficient evidence for an equitable disposition of the appellant's appeal has been obtained. 2. The veteran died during active service on November 27, 1993, as the result of a self-inflicted gunshot wound to the forehead. 3. The veteran was intoxicated at the time of the fatal incident, and the intoxication was the proximate cause of the injury causing his death. 4. The veteran intentionally became intoxicated with knowledge of or wanton and reckless disregard of its probable consequences. 5. The veteran's death was the result of abuse of alcohol. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not established, and the criteria for entitlement to dependency and indemnity compensation (DIC) benefits have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.1(l)-(n), 3.301, 3.312 (1999); VAOPGCPREC 11-96. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran died during active service on November 27, 1993, as the result of a self-inflicted gunshot wound to the forehead. He was at a friend's house at the time of the incident. An April 1994 line of duty (LOD) investigation report disclosed that an eyewitness was seated next to the veteran at the time of the injury. According to this eyewitness, the veteran was playing with a handgun when he accidentally shot himself in the forehead. Alcoholic beverages were found at the scene and an autopsy report revealed that the veteran's blood alcohol level was .288% at the time of his death. The medical examiner's narrative summary of the circumstances surrounding the death included that the veteran was sitting on a couch with a second person with a small caliber handgun in his hand. He pointed the gun to his forehead and fired a single shot. The autopsy report showed that blood stained the dorsal surface of the veteran's left hand and was associated with a faint brown-black, sooty-like stain at the base of the long finger. There was a firmly held contact gunshot wound in the forehead with a muzzle imprint with powder ring. The autopsy report listed the manner of death as suicide. However, the death certificate, signed by the doctor that conducted the autopsy, listed the cause of death as an accident. As indicated on the certificate, the autopsy findings were considered prior to the completion of the cause of death. The LOD investigation report further indicated that the handgun in the veteran's possession at the time of his death was not registered on post. Ballistics tests matched the bullet found in the veteran's head to the weapon. He had damaged the firing pin in the weapon; however, it would still fire with the firing pin turned around but would not chamber another round. All safety mechanisms were functional on the weapon. The veteran's competence in handling the weapon could not be determined; however, several statements indicated that he was reckless with it and often played with it. The veteran's intoxication at the time of death was sufficient to rule out any level of reasonable control. The LOD investigation report noted that a question of suicide arose based upon the veteran's lifestyle. He had several problems, including facing Uniform Code of Military Justice (UCMJ) action for offenses such as driving under the influence (DUI), failure to obey a noncommissioned officer (NCO), failure to obey a court order, assaulting his wife, drinking in the barracks and possible use of illicit drugs. He was previously summary court-martialed for larceny and underage drinking and was recommended for and going through the process of chapter out of the military. His marriage had recently broken up and his wife was sent home prior to the dissolution of the marriage. He was having problems with his platoon members due to distrust following the summary court- martial and accusing another platoon member of having an affair with his wife. The veteran also owed about four thousand dollars in debts and fines. During a suicide prevention brief on the night before the incident, the veteran mentioned that he often thought about suicide, although he denied having any intention of committing suicide. The counselor did not perceive any problem. The possibility of suicide was ruled out by the eyewitness testimony, an inconclusive psychological autopsy, and the high level of intoxication. The LOD investigation report also explored the possibility of homicide. The veteran had apparently been threatened a few weeks prior to his death by soldiers who had suspected that he turned them in to the police for using illegal drugs. Thereafter, a witness reported that the veteran brought a handgun to work. The veteran and his room and car were searched, but the handgun was not found. He denied having a weapon. The possibility of homicide was, likewise, ruled out based on the eyewitness testimony. The service branch made no determination as to whether the veteran's death occurred in the line of duty. The appellant claimed entitlement to DIC benefits in December 1993. An administrative decision by the RO dated in December 1994 determined that the veteran's death was the result of his own willful misconduct and not incurred in the line of duty. The appellant submitted a notice of disagreement with this decision in February 1995. A statement of the case was issued in March 1995 and a substantive appeal was received at the RO in April 1995. In this case, the February 1995 notice of disagreement, the April 1995 substantive appeal and the March 1997 informal hearing presentation include statements pertinent to the appellant's claim. These statements are as follows: (1) "On base at Fort Richardson they sell alcohol beverages in several stores. They also have a bar called 'NCO club'. I don't understand how it is o.k. for the military to sell alcohol beverages, but it was so wrong for my husband to be drinking while he was off duty." (2) "My husband went to his first sergeant a couple of days before his death and reported threats on his life. I have recently received pictures from the crime scene. There are several things that make me believe it was not an accident. For instance, my husband was shot in the forehead between the eyes. It was a straight in shot. If my husband had shot himself accidentally or not, that would have been really hard to do. Also my husband was right handed and he had the car keys in the palm of his right hand with the ring around his pointer finger. I belive [sic] my husband was murdered and I also belive [sic] this is a cover up." (3) "[The appellant] contends, as does The American Legion, that the veteran's gunshot wound was a direct result of an uncertified mental disorder which led to his death." A field examination was conducted in September 1997. It was noted at that time that the appellant did not know the whereabouts of her mother-in-law. Based upon the appellant's response, the field examiner guessed that she did not get along with her mother-in-law. The veteran's mother was not able to be located for interview. In support of her claim, the appellant submitted photographs of the veteran taken at the time of his death. The photographs showed that the veteran held his car keys in his right hand at the time of his death. The appellant again claimed that the veteran was murdered as a cover up. She provided statements that she allegedly took from his service file. The statements are not signed and bear no date or any indication of their origin. They indicate that the veteran filed a report after being threatened and "ruffed" up by co-workers on November 22, 1993. One of the co-workers reportedly told the veteran that he could have him killed for $250.00. The appellant also provided an October 1998 written statement which appears to be in the appellant's handwriting and was purportedly signed by the veteran's mother. The letter discusses the status of veteran's and the appellant's marital relationship prior to his death. Additional evidence was forwarded to the Board in June 1999, including a copy of the October 1998 statement from the veteran's mother, a written statement (in different handwriting) from the veteran's mother, and a letter allegedly from the veteran. The latter two documents appear to be in the same handwriting. The purported letter from the veteran was undated and addressed to his mother. The letter indicated that the veteran did not want his mother to cry for him, now that he was gone. It was allegedly written in contemplation of death. II. Legal analysis The appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, she has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). The law provides for the payment of dependency and indemnity compensation to the surviving spouse of a veteran who dies from a service-connected or compensable disability. 38 U.S.C.A. § 1310 (West 1991). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1999). "Service-connected" means that the disability resulted from personal injury suffered in line of duty in the active military service. 38 U.S.C.A. § 1110 (West 1991) (emphasis supplied). No compensation shall be paid if the disability is the result of the person's own willful misconduct or abuse of alcohol or drugs. Id. If a service member dies while on active duty, it is presumed that death occurred in the line of duty. However, VA regulations preclude the awarding of dependency and indemnity compensation benefits to a service member's widow where his death was the result of his own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 C.F.R. §§ 3.1(l)-(n), 3.301 (1999); Smith v. Derwinski, 2 Vet. App. 241, 243-244 (1992); VAOPGCPREC 11-96. Therefore, either willful misconduct or the abuse of alcohol causing death will preclude a finding that the death was in the line of duty. If the death was not in the line of duty, it cannot be service connected. Willful misconduct means an act involving conscious wrongdoing or known prohibitive action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of law administered by the Department of Veterans Affairs. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of the injury, disease or death. 38 C.F.R. § 3.1(n) (1999). Further, simple drinking of alcoholic beverages is not, of itself, willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to the effect will be considered willful misconduct. 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. 38 C.F.R. § 3.301(c)(2) (1999). However, an injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For these purposes, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d) (1999). It is undisputed that the veteran was on active duty at the time of his death. His death is therefore deemed to have been incurred in line of duty unless it is shown that he engaged in willful misconduct, and that such misconduct proximately caused his death, or it is shown that his injury and death were the result of abuse of alcohol or drugs. The National Safety Council, U.S. Department of Transportation, Departments of the Army, Navy and Air Force, and Defense Supply Agency have established that .10 percent or more blood alcohol establishes a presumption that a person was under the influence of intoxicating liquor. M21-1, Part IV, Chapter 11, 11.04(c)(2) (March 25, 1996). As indicated above, the veteran had a blood alcohol level of .288 percent at the time of his death, which is nearly three times the level establishing a presumption of intoxication. In this case, the Board finds that the record unequivocally demonstrates that the veteran's intoxication proximately resulted in his injury and death, and that he intentionally became intoxicated with knowledge of or wanton and reckless disregard of its probable consequences. An eyewitness to the accident reported that the veteran was playing with a handgun when he accidentally shot himself in the forehead. His blood alcohol level of .288 percent indicates that he had voluntarily ingested such a quantity of alcohol as to be physically and mentally unqualified to handle a dangerous weapon. His handling of the handgun while he was severely intoxicated establishes a wanton and reckless disregard of the probable consequences. The other evidence of record indicates that there was nothing in the condition of the handgun which would be an obvious cause of the accident or contribute to cause the accident. The veteran had damaged the firing pin, but the weapon was still able to be fired. All safety mechanisms were functional on the weapon. Other than the veteran's extremely high level of intoxication and reckless disregard for the consequences of his actions, there is no evidence of record to explain the accident. The appellant's first argument noted above is essentially that the veteran should not be held responsible for his intoxication and resulting death because alcohol was sold on base at Fort Richardson. First, the appellant has not established, nor does the evidence of record show, where the alcohol consumed by the veteran at the time of his death was purchased. He apparently ingested the alcohol at a friend's house, and was of legal age to purchase and drink alcohol. Second, the simple drinking of alcoholic beverages is not, of itself, willful misconduct. Rather, it was the veteran's excessive consumption of alcohol, which was entirely within his own control, and reckless handling of a dangerous weapon which led to his death in this case. The veteran had faced military punishment for driving under the influence, drinking in the barracks, and underage drinking. Therefore, he was aware of the serious consequences of drinking to excess, and acted with complete disregard of the probable consequences. 38 C.F.R. § 3.1(n) (1999). He surely knew better than to act as he did. With respect to the appellant's second contention noted above, the Board finds that the possibility of both suicide and homicide were ruled out by an eyewitness to the event, who reported that the veteran accidentally shot himself. There is no evidence of record to contradict the eyewitness account of the event. During a suicide prevention brief on the night before the incident, the veteran mentioned that he often thought about suicide, but denied having any intention of committing suicide. The counselor did not perceive any problem. Moreover, the appellant has provided no evidence, as distinguished from speculation, that the wound was other than self inflicted or of any "cover up" of the veteran's death on the part of the service department. Regardless of whether or not the veteran was right or left handed, he held the gun in his left hand at the time he fired it, as shown in the autopsy report. Written statements have been submitted in connection with this appeal that are of questionable authenticity, as discussed above, including an undated letter allegedly written by the veteran to his mother indicating that he was contemplating death, i.e., either by suicide or homicide; statements allegedly from the veteran's mother that are in two obviously different styles of handwriting; and the purported statement from the veteran's military files, which is undated, unsigned, and contains no markings to identify its provenance. Furthermore, as to the statements purported to be from the veteran's mother, the appellant asserted to the field examiner that she had no idea how to locate her mother-in-law. It is difficult to reconcile her reported ignorance as to her mother-in-law's whereabouts with the subsequent submission of two purported statements (in different handwriting) from the mother-in-law. The Board assigns no probative weight to these documents, and finds the appellant's credibility to be questionable. Finally, the record contains no indication of any factors such as "an uncertified mental disorder" which might have impaired the veteran's mental state on the date in question. The appellant has not indicated if or when the veteran was ever treated for such a disorder. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (The VA's "duty" is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. . . . [T]he "duty to assist" is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim.") Efforts to obtain the veteran's service medical records have been unsuccessful. 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. Further, as determined above, suicide is not at issue here. See 38 C.F.R. § 3.302 (1999). As determined by the LOD, police department, and the death certificate, which was prepared by the medical examiner who conducted the autopsy, the veteran's death was accidental. To find that the veteran committed suicide would be no more than mere conjecture. After considering the gross level of impairment caused by a blood alcohol level of .288 percent, and given the absence of any other explanations for the cause of the accident, the Board finds that the preponderance of the evidence supports a finding that the proximate cause of the fatal injury sustained by the veteran was his impairment caused by abuse of alcohol, and that the injury from which he died was not incurred in the line of duty. In balancing the evidence for and against the appellant's claim, it is important to note that the LOD investigation report and autopsy report include positive findings regarding the involvement of alcohol in the accident. In contrast, the only evidence supporting the appellant's contention are her unsupported allegations. Under such circumstances, the Board concludes that the injury resulting in the veteran's death was not incurred in the line of duty, but was a result of his own willful misconduct and from the abuse of alcohol, and the veteran's spouse is precluded from receiving VA DIC benefits. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule under law and VA regulations. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). ORDER Entitlement to service connection for the cause of the veteran's death is not established, and entitlement to dependency and indemnity compensation (DIC) benefits is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals