Citation Nr: 0722485 Decision Date: 07/24/07 Archive Date: 08/02/07 DOCKET NO. 05-31 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for the cause of the veteran's death. WITNESSES AT HEARING ON APPEAL Appellant & Her Father ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a veteran who served on active duty from January 2002 to November 2002. The veteran died in November 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 letter of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for cause of the veteran's death based on a finding that his death was the result of willful misconduct. In August 2006, the appellant appeared at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND Dependency and Indemnity Compensation (DIC) benefits are not payable to the surviving spouse of a veteran if the cause of death was the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.301(a), (b). "Willful misconduct" is defined as 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 and must be the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n)(1), (3). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the veteran's willful misconduct. 38 C.F.R. § 3.301(c)(3). A January 2004 U. S. Marine Corps line of duty determination found that the veteran's death did not occur in the line of duty. The Marine Corps concluded his death was the result of "intentional misconduct and willful negligence" because he intentionally ingested several illegal substances, to include cocaine and fentanyl. The appellant alleges that this determination is in error and that the veteran did not die of an accidental overdose. She testified at the August 2006 DRO hearing that on the day of the veteran's death, he did not feel well, said that his eyes and face hurt, and went to get some sleep. She discovered that he had died when she went to wake him up for dinner. She believed the veteran died of a sinusitis edema because she had originally been told that was what he died from; she had researched the symptoms and noted that he had some of them. Specifically, she indicated that the veteran had asthma when he was in boot camp and that he was at the sick bay for a week. The Marine Corps' line of duty determination has been associated with the claims file; however, records that would have been generated during the underlying investigation, to include interviews and a complete investigation report, are not of record. Additionally, the death certificate of record states the cause of death was pending and indicates that an autopsy was performed and was used in determining the veteran's cause of death. The autopsy report is not of record. These records should be in the veteran's service medical records and/or his service personnel records; however, it does not appear that these records were ever requested. All of the above noted records may be pertinent to determining whether the appellant is entitled to receive DIC benefits based on the cause of the veteran's death and they must be secured. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for an exhaustive search of all potential depositories where the veteran's service medical and personnel records could be located, and secure copies of all such records for association with his claims file. The records requested should include service medical and personnel records, including the report and underlying records generated by the investigation of the veteran's death and the complete autopsy report. The search should include (but not necessarily be limited to) the National Personnel Records Center, the Records Management Center, and the Personnel Management Support Branch of Marine Corps Headquarters. If any location contacted suggests other sources, those sources should be encompassed by the search. If any requested records are unavailable, or the search for such records is fruitless, it should be so documented in the claims file, along with an explanation for the negative result (records unavailability). 2. The RO should also undertake any other indicated development suggested by the development ordered above. 3. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and give the appellant the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).