Citation Nr: 0718057 Decision Date: 06/15/07 Archive Date: 06/26/07 DOCKET NO. 05-35 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and the veteran's sisters and brothers-in-law ATTORNEY FOR THE BOARD Celeste Farmer Krikorian, Associate Counsel INTRODUCTION The veteran served on active duty from September 1994 to June 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The veteran died in June 2002 at the age of 26 while on active duty. 2. During his lifetime, the veteran had not established service connection for any disability. 3. A Certificate of Death certifies multiple handgun wounds to the torso as the veteran's cause of death. 4. A service-connected disability did not substantially or materially contribute to cause his death. 5. The veteran's death was the proximate or immediate result of his deliberate or intentional wrongdoing with wanton and reckless disregard of its probable consequences. CONCLUSION OF LAW The criteria for service connection for the cause of the veteran's death are not met. 38 U.S.C.A. § 1310 (West Supp. 2005); 38 C.F.R. § 3.312 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the appellant is the veteran's mother, who has applied for Dependency and Indemnity Compensation (DIC) as a parent of the veteran. (VA Form 21-525 received in August 2003) She was notified in May 2004 that her claim was denied on the basis that the veteran's death while in service was due to his own willful misconduct and not in the line of duty. Essentially, the appellant contends that the veteran's death was in the line of duty since he was an active member of the navy at the time of his death, and that his purported wife was responsible or could have somehow prevented his death. The July 2002 Certificate of Death shows that the veteran died of multiple handgun wounds to the torso, and that the fatal injuries occurred when "[l]aw enforcement shot the decedent as he assaulted female with knife." A Police Department Offense Report dated in July 2002 confirms that the veteran was shot with bullets from handguns of police officers responding to a domestic violence call in a concerted effort to stop the veteran from stabbing his wife to death. The reporting officer stated that he found the veteran dead at the scene immediately following the shooting. The July 2002 police report indicated that numerous interviews were conducted, including an interview with the coroner, and an autopsy report was received. The police report indicates that an autopsy was performed on the date of the veteran's death in June 2002; five bullets were recovered from the body of the veteran, and no other injuries were found on his body. DIC may be paid to a parent of a veteran who dies from a service-connected or compensable disability. 38 U.S.C.A. § 1310(a). For the purposes of the provisions of the law governing DIC, the term "veteran" includes a person who died in the active military, naval, or air service. 38 U.S.C.A. § 1301. The standards and criteria for determining whether a disability is service-connected shall be those applicable under chapter 11 of Title 38, United States Code. Service connection may be granted with evidence that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.310(a), 3.312 (2006). The veteran was not service connected for any disabilities during his lifetime, and there is nothing in the record to indicate that the veteran died of any cause other than multiple handgun wounds to the torso (See Police Report and Autopsy findings). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.301(a). An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or the disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 2002). "In line of duty" means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct. 38 C.F.R. § 3.1(m). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). The Board finds that direct service connection for the cause of the veteran's death cannot be granted due to his willful misconduct. According to the July 2002 Police Department Offense Report, the police responded to a 911 call involving domestic violence. The police who arrived on the scene were interviewed, and their statements were incorporated into the findings of the report. The report reflects that when the police arrived on the scene, it appeared that the veteran had been stabbing his wife. According to the report, the wife of the veteran was down and the veteran was standing with a knife in each hand. The police asked the veteran to drop his weapons, but he refused. Upon his refusal, a police officer released a chemical spray which had no apparent effect on the veteran. The veteran then began to stab his wife again. At that point, the police officers reported that they shot the veteran in order to keep him from killing his wife. The author of the report stated that the veteran was dead when he arrived at the scene following the reported altercation. All statements made by police officers involved in the events immediately proceeding the veteran's death are in agreement with each other and are consistent with the findings made on the July 2002 Certificate of Death and the coroner's autopsy report. The Board concludes that the veteran's actions in this case constitute willful misconduct pursuant to 38 C.F.R. § 3.1(n)(1). According to that provision, willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. The deliberate or intentional wrongdoing in this case was the veteran's act of stabbing his wife. As a person with extensive military training in weapons and safety precautions, the veteran was not unfamiliar with weapons (i.e., knives). He clearly had knowledge of his actions and exhibited wanton and reckless disregard of the probable consequences of his actions. He intentionally acted in a manner that demonstrated a reckless indifference regarding the life of his wife. Such behavior clearly falls within the regulatory definition of willful misconduct. 38 C.F.R. § 3.1(n)(1). Based on the evidence in this case and for the reasons provided, the Board finds that the veteran died as the result of gunshot wounds to the torso made by police officers in an effort to prevent the veteran from stabbing his wife to death, and that his death was not accidental and not the result of suicide. Rather, his death was proximately caused by his deliberate or intentional wrongdoing with wanton and reckless disregard of its probable consequences. Thus, his death was the result of his willful misconduct and precludes a finding of service connection for the cause of his death by gunshot wound. In reaching this decision, the Board has considered a Line of Duty Determination by the Department of the Navy dated in June 2003 and a VA Administrative Decision, signed in February and March 2004, which found that the veteran's death was due to his own willful misconduct. The facts considered in their individual determinations are undisputed by official records setting forth the events surrounding the veteran's death and fully supported by the record as set forth above. The Board has considered the March 2007 testimony of the appellant and the other witnesses as members of the veteran's family. They attempted to cast doubt on the circumstances of the veteran's death by impugning the character of the woman he was attacking, suggesting that she was attempting to commit suicide, and otherwise disputing the events recorded in the police report and other documents concerning the events surrounding the veteran's death. They testified, however, that they were not in the state where the events occurred when they occurred, although they reported telephone conversations, including a conversation with the veteran on the day of his death. In weighing the competing evidence concerning the circumstances of the veteran's death, the Board gives more weight to the official records and reports, which were based on eyewitness accounts, autopsy reports, etc., rather than on the recollections of the veteran's family members who were not then present. The Board has considered the applicability of the doctrine of reasonable doubt under 38 U.S.C.A. § 5107(b); however, the doctrine is inapplicable because the preponderance of the evidence is against the appellant's claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55- 56 (1990). The Board has considered 38 U.S.C.A. § 105(a); the finding of willful misconduct is supported by a preponderance of the evidence, as discussed in this decision. In view of the foregoing, service connection for the cause of the veteran's death is not warranted. Duties to notify and to assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159 and 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, following the appellant's claim received in August 2003, the RO sent her a letter in October 2003 informing her what evidence was needed to support her claim, what evidence VA would obtain, and what evidence she should provide. After the adverse decision in 2004, the RO also sent letter in July and December 2006, which also advised her to provide any pertinent evidence in her possession. The July 2006 letter also provided the information required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim). The Board finds that any deficiency in the content or timing of notice is harmless error. The appellant was fully informed of the information needed to support her claim, and given ample opportunity to provide evidence and information to VA. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). VA has made reasonable attempts to secure any pertinent service, private, or VA records that have been identified, as well as relevant police reports and other documents. 38 C.F.R. § 3.159. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the appellant. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs