Willful misconduct:

BVA Citation Nr: 0724476

An injury incurred during active military, naval, or air 
service will be deemed to have been incurred in the line of 
duty unless such injury or disease was the result of the 
veteran's own willful misconduct or, for claims filed after 
October 31, 1990, was a result of his or her abuse of alcohol 
or drugs. A service department finding that injury, disease 
or death occurred in line of duty will be binding on VA 
unless it is patently inconsistent with the requirements of 
laws administered by VA. See 38 U.S.C.A. § 105(a) (West 
2002); 38 C.F.R. § 3.1(m) (2006).
 
Willful misconduct is an act involving conscious wrongdoing 
or known prohibited action. Willful misconduct 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. See 38 C.F.R. § 
3.1(n) (2006).
 
The Court has held that 38 U.S.C.A. § 105(a) creates a 
presumption that an injury incurred during active military 
service will be deemed to have been incurred in line of duty, 
unless the injury was the result of the person's own willful 
misconduct or abuse of alcohol or drugs. A finding of 
'willful misconduct' is an independent finding which negates 
the 'line of duty' presumption. To deny a finding of line of 
duty on the basis of a finding of willful misconduct, the 
Board must establish that denial is justified by a 
preponderance of the evidence. See Smith v. Derwinski, 2 
Vet. App. 241 (1992). In evaluating the evidence for and 
against a claim, the Board must conduct its review mindful of 
the statutory presumption in the veteran's favor. See Akins 
v. Derwinski, 1 Vet. App. 228, 230 (1991). The Board notes 
that line of duty/misconduct determinations are based on a 
'preponderance of the evidence' legal standard and this 
standard was most recently affirmed by the US Court of 
Appeals for the Federal Circuit. See Thomas v. Nicholson, 
423 F.3d 1279 (Fed. Cir. 2005).

BVA Citation Nr: 0718057

"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).