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M21-1, Part III, Subpart v, Chapter 1, Section D – Willful Misconduct and Line of Duty (LOD)

Overview


In This Section

This section contains the following topics:

1.  General Information on Willful Misconduct Determinations


Introduction

This topic contains general information on willful misconduct determinations, including

Change Date

June 4, 2015

III.v.1.D.1.a.  Definition:  Willful Misconduct

Willful misconduct is an act involving conscious wrongdoing or known prohibited action.  A wrongful act is either inherently wrong in itself, or forbidden by law.
A service department finding that injury, disease, or death was not due to misconduct will be binding on the Department of Veterans Affairs (VA) unless it is patently inconsistent with the facts and the requirements of laws administered by VA.
Willful misconduct involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences.
Note:  Mere technical violation of police regulations or ordinances does notnecessarily constitute willful misconduct.

III.v.1.D.1.b.  When to Make a Willful Misconduct Determination

Make a willful misconduct determination if a death or disability that affects entitlement occurred under questionable circumstances.
Willful misconduct is not determinative unless it is the proximate, or direct, cause of injury, disease, or death.
Reference:  For more information on willful misconduct, see

III.v.1.D.1.c.  When Not to Make a Willful Misconduct Determination

In general, accept service department findings of no misconduct as conclusive unless there is a preponderance of evidence to the contrary.
The principles stated in M21-1, Part III, Subpart v, 1.D.6.c regarding circumstances in which line of duty (LOD) should not routinely be questioned also apply to willful misconduct.

III.v.1.D.1.d.  Survivors Pension Entitlement in Willful Misconduct Cases

Survivors Pension benefits may be payable if death
  • was not in the LOD, or
  • was due to willful misconduct, and
  • occurs in service.
In order to be eligible for pension benefits, the Veteran must meet certain minimum service requirements.  Under these circumstances verify whether the Veteran had the requisite service in accordance with M21-1, Part III, Subpart iii, 2.E.8.a.
Reference:  For more information on Veteran status, see 38 CFR 3.1(d).

2.  Willful Misconduct Determinations and Alcohol Consumption


Introduction

This topic contains information on willful misconduct determinations and alcohol consumption, including

Change Date

August 4, 2017

III.v.1.D.2.a.  Proximate and Immediate Effects of Alcohol Consumption

A person is held responsible for disabling injuries or death that resulted directly and immediately from deliberate, excessive indulgence in alcohol for the purposes of enjoyment.
Willful misconduct in cases involving alcohol consumption is the willingness to achieve a drunken state and, while in this condition, to undertake tasks for which the person is unqualified, physically and mentally, because of the resulting intoxication.
Exception:  As is discussed further in M21-1, Part III, Subpart v, 1.D.3.b, service connection (SC) may be awarded for injuries sustained when a service-connected (SC) condition (such as a mental disorder inclusive of alcohol abuse) involuntarily renders a Veteran unable to control his/her actions or comprehend danger.

III.v.1.D.2.b.  Making Determinations of Willful Misconduct Involving Alcohol

Determinations of willful misconduct in cases involving alcohol consumption depend on the facts found.
Exercise care to guard against findings of willful misconduct on the basis of inconclusive evidence.  An adverse determination requires that there must beexcessive indulgence as the proximate cause of the disability or death in question.
Important:  According to Martin v. McDonald, 761 F.3d 1366 (2014), a military discharge for alcohol rehabilitation failure, alone, does not constitute willful misconduct. Based upon a review of the facts and circumstances of the case, theremust be an actual finding of willful misconduct that led to alcohol rehabilitation failure.
Reference:  For information on requesting facts and circumstances, see M21-1, Part III, Subpart v, 1.B.1.g.

III.v.1.D.2.c.  Intoxication Standards Set by the NSC

In determining willful misconduct, consider laboratory tests bearing on the issue of alcoholic intoxication together with all other facts and circumstances.
The National Safety Council (NSC) defines blood alcohol concentration (BAC) as
  • grams of alcohol per 100 milliliters of blood, or
  • grams of alcohol per 210 liters of breath.
Under 23 U.S.C. 163, a BAC of 0.08 is a per se violation of driving while intoxicated.  By July of 2005, all states, Washington D.C., and Puerto Rico had adopted a BAC of 0.08 as the legal level of intoxication.
The following table was developed by the NSC in 1938.  In 1960, BAC for “under the influence” was reduced from 0.15 to 0.10, and reduced again to 0.08 in 2004.
BAC
Level of Intoxication
0.00 – 0.05
Presumed not intoxicated/impaired.
0.05 – 0.08
No presumption that the person was or was not intoxicated/impaired.
Important:  Such BAC may be considered with other competent evidence in determining if the person was under the intoxicating influence of alcohol.
0.08 or more
Presumption established that the person was intoxicated/impaired.
Note:  Refer to individual State laws if the level of intoxication is unclear.

III.v.1.D.2.d.  Organic Diseases and Disabilities Resulting From Chronic Use of Alcohol
The guidelines below apply to claims for compensation based on organic diseases that are secondary to chronic use of alcohol.
For claims filed …
VA considers …
prior to November 5, 1990
such disabling diseases were incurred in the LOD and therefore could qualify for compensation.
on or after November 5, 1990
such disabling diseases were not incurred in the LOD and cannot qualify for compensation, because 38 U.S.C. 1110 prohibits payment of compensation for a disability that is a result of a Veteran’s abuse of alcohol.
References:  For more information on

3.  Willful Misconduct Determinations and Vehicular Accidents


Introduction

This topic contains information on willful misconduct determinations and vehicular accidents, including

Change Date

June 27, 2016

III.v.1.D.3.a.  Misconduct Determination for Vehicular Accidents

A misconduct determination may be required if the Veteran’s disability or death resulted from a vehicular accident and it is established that the Veteran
  • was the operator of the vehicle, or
  • contributed in some way to the cause of the accident, for example, interfering with the operator.
Note:  Do not routinely develop for a misconduct determination in automobile accident cases without positive evidence of potential misconduct.  For more information on cases in which a decision is not necessary, see M21-1, Part III, Subpart v, 1.D.6.c.

III.v.1.D.3.b.  Considering Evidence of Conscious Wrongdoing or Involvement in a Known Prohibited Action

A finding of willful misconduct is appropriate and SC is not in order when
  • a motor vehicle accident causes additional disability, and
  • the preponderance of evidence establishes that the accident was the result of the Veteran’s conscious wrongdoing or involvement in a known prohibited action.

SC is in order under 38 CFR 3.310, however, for injuries sustained when an SC disability (such as alcoholism secondary to SC posttraumatic stress disorder) is the involuntary cause of a motor vehicle accident because it rendered the Veteran unable to

  • control his/her actions, or
  • comprehend danger.
When making a determination,
  • obtain and carefully consider all evidence available, including police reports
  • examine circumstantial evidence, and
  • consider obtaining an opinion on the Veteran’s mental state.
Important:  In vehicular accidents, there is frequently no direct testimony or such testimony in itself presents an incomplete picture.  Therefore, the physical evidence assumes added importance and is entitled to great weight.  Such facts speak for themselves and are not subject to the variations of observation or self-interest often found in direct testimony.
Examples:  Some examples of secondary evidence that may be considered are
  • skid marks
  • damage to vehicles
  • position of vehicles after the accident in relation to the point of impact, and
  • evidence of debris and scattered parts.

Reference:  For more information about the principle discussed in this block, see


III.v.1.D.3.c.  Affording Appropriate Weight to Service Department Findings

Give service department findings, including “no misconduct” determinations, due consideration.
Important:  The decision of VA must rest on principles developed under VA laws, with special reference to wanton and reckless disregard of the probable consequences, as evidence of willful misconduct.

III.v.1.D.3.d.  Factors to Consider for Vehicular Accidents

In vehicular accident cases, a decision maker should consider all factors, including, but not limited to,
  • excessive speed
  • diversion of attention to companions, or
  • use of intoxicants, illegal substances, etc
Although a single factor may not be sufficient evidence, it is possible that a combination of factors may be sufficient evidence that the Veteran’s manner of operation of a vehicle was so unreasonable and dangerous as to constitute a wanton and reckless disregard of the probable consequences.
It is reasonable for the decision maker to conclude that an accident proximately resulted from such combined factors in the absence of any intervening cause, including, but not limited to,
  • mechanical defect in the vehicle
  • a defect in the road, or
  • actions by some other person.

4.  Compensation for Disabilities Resulting from Substance Abuse for Claims Filed After October 31, 1990

 


Introduction

This topic contains information on the prohibition of payment of compensation for a disability resulting from substance abuse for claims filed after October 31,1990, including

Change Date

June 4, 2015

III.v.1.D.4.a.  Prohibitions of 38 U.S.C. 105, 38 U.S.C. 1110, and 38 U.S.C. 1131

For claims filed after October 31, 1990, 38 U.S.C. 10538 U.S.C. 1110, and 38 U.S.C. 1131 prohibit
  • awarding SC for primary and secondary disabilities resulting from abuse of alcohol or drugs, and
  • paying Dependency and Indemnity Compensation (DIC) for death resulting from primary and secondary disabilities resulting from abuse of alcohol or drugs.
Notes:
  • This change does not affect DIC entitlement criteria.
  • Do not sever SC for such disabilities, which were properly awarded on or before October 31, 1990.
  • Do not award an increase in compensation for the secondary effects of drug use based on any claim received after October 31, 1990, including a claim
    • for an increased evaluation, or
    • to add a dependent.

III.v.1.D.4.b.Applicable Dates of Prohibition for Substance Abuse

The alcohol and drug abuse provision of 38 U.S.C. 105
  • applies only to claims for SC filed after October 31, 1990, and
  • includes initial and supplemental claims for compensation and DIC.
Important:  Adjudicate claims received before November 1, 1990, under criteria in effect before the change in the law.
Reference:  For clarification on handling issues related to alcohol or drug abuse claims, see VAOPGCPREC 2-1998.

III.v.1.D.4.c.  Definition:  Alcohol Abuse

Alcohol abuse is the drinking of alcoholic beverages in an amount, over any period of time, sufficient to cause a disability.

III.v.1.D.4.d.  Definition:  Drug Abuse

Drug abuse includes the use of
  • illegal drugs, including prescription drugs that are illegally or illicitly obtained
  • prescribed or non-prescribed drugs for a purpose other than the medically intended purpose, and
  • other agents, such as glue or paint, to enjoy their intoxicating effects.

III.v.1.D.4.e.  Responsibility for Willful Misconduct Determinations

Use the table below to determine who is responsible for making a willful misconduct determination involving substance abuse.
If willful misconduct or disability resulting from substance abuse …
Then the …
involves
  • disease
  • suicide attempts, or
  • death by suicide
Reference:  For more information on cases involving disease, suicidal attempts, or suicidal death, see
rating activity
  • determines the issue, and
  • includes the determination in the formal rating decision.
does not involve
  • disease
  • suicide attempts, or
  • death by suicide
authorization activity
  • determines the issue, and
  • prepares a formal determination for approval by a coach.
Reference:  For more information on administrative decisions, see M21-1, Part III, Subpart v, 1.A.3.

III.v.1.D.4.f.  Considering the Accidental or Careless Use of Drugs

Do not consider the accidental or careless use of prescription or non-prescription drugs, or other agents, to be drug abuse unless the accident or carelessness is the result of
  • intoxication from alcohol or illegal drugs, or
  • the Veteran’s willful misconduct.

III.v.1.D.4.g.  Determining if DIC Is Payable

Use the table below to determine whether DIC is payable.
If the …
Then DIC …
Veteran’s death resulted from a disease or injury that was properly SC during the Veteran’s lifetime under the law in effect before November 1, 1990
may be paid to the Veteran’s survivors.
  • Veteran’s death resulted from an alcohol or drug-related disease or disability, and
  • DIC claim is received after October 31, 1990
may not be paid, even if death was in-service.

III.v.1.D.4.h.  Determining SC for Secondary Conditions

Use the table below to determine SC for a secondary condition.
If …
Then …
the diseases and disabilities are a secondary result of alcohol or drug abuse
effective November 1, 1990, SC cannot be awarded for these diseases and disabilities.
a Veteran’s alcohol or drug abuse is determined to be part of, or secondary to, an SC condition
any disease or disability resulting from the alcohol or drug abuse should still be SC under 38 CFR 3.310(a).
Reference:  For more information on SC under 38 CFR 3.310(a) for a disease or disability resulting from alcohol or drug abuse, see Allen v. Principi, 237 F.3d 1368, 1378 (Fed.Cir.2001).

5.  Development of Claims Involving Accidental Injuries

 


Introduction

This topic contains information on the development of claims involving accidental injuries, including information on

Change Date

February 19, 2019

III.v.1.D.5.a.Determining Whether an Administrative Decision Is Necessary for Claims Involving Accidental Injuries

Upon receipt of a claim for SC for residuals of an accidental injury, follow the guidance in M21-1, Part III, Subpart v, 1.D.6.c to determine whether an administrative decision is necessary.
According to 38 CFR 3.301(a), VA may award direct SC “. . . 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. . . .”  VA uses administrative decisions as the formal means of resolving the issue of whether or not a Veteran incurred or aggravated a disability
  • in the LOD, or
  • as a result of his/her own willful misconduct.
Reference:  For more information on LOD determinations, see M21-1, Part III, Subpart v, 1.D.6.

III.v.1.D.5.b.Obtaining an Official Police Report of an Accident

If the claimant or the evidence of record identifies a police report covering an accidental injury, and evidence potentially available in such a report is considered relevant to a decision, send a development letter requesting a copy of the police report to
  • the military installation where the incident occurred for military police reports, or
  • the local civilian police authority for incidents reported to local authorities.

III.v.1.D.5.c.Additional Development for Administrative Decisions Regarding Accidental Injury

Follow the steps in the table below if the Veteran’s service personnel and treatment records lack sufficient information about the accidental injury to render an administrative decision.
Step
Action
1
Prepare a development letter that asks the claimant to
  • describe the circumstances surrounding the accident and how, when, and where it occurred
  • indicate whether military or civilian police filed a report on the accident
  • provide the name and address of any witnesses, and
  • respond to the development letter within 30 days.
Notes:
2
If evidence received includes contact information for a witness or witnesses to the accident,
  • send VA Form 21-4138 to each witness with a letter that asks him/her to
    • provide a statement of his/her account of the accident on the form, and
    • return the form within 30 days, and
  • inform the claimant of the request and ask for his/her assistance in obtaining the witness’ statement.
3
Once all suspense periods for returning VA Form 21-4138 have expired, route the claim and all accumulated evidence to an employee responsible for preparing administrative decisions, unless
  • additional development involving the administrative decision is necessary, or
  • a witness has not yet returned VA Form 21-4138.
If a witness has not returned VA Form 21-4138 upon expiration of the 30-day suspense period,
  • send a follow-up request to the witness, and
  • allow the witness an additional 30 days to return the form.

III.v.1.D.5.d.When to Request a Field Examination to Substantiate Evidence of Accidental Injury

If all other efforts to secure the information necessary to make an administrative decision have been exhausted, request a field examination to
  • resolve conflicts in evidence, or
  • remedy defects in the evidence.
Reference:  For more information on requests for field examinations, see M21-1, Part III, Subpart vi, 8.8.

6.  LOD Determinations

 


Introduction

This topic contains information on LOD determinations, including

Change Date

June 4, 2015

III.v.1.D.6.a.  Responsibility for LOD Determinations

Normally, the authorization activity is responsible for LOD administrative determinations.  However, the rating activity has jurisdiction over determinations involving
  • disease
  • suicide attempts, or
  • death by suicide.
References:  For more information on

III.v.1.D.6.b.  Preparing an Administrative Decision for Approval

Prepare administrative decisions for review as provided in M21-1, Part III, Subpart v, 1.A.3.  Include determinations made by the rating activity in the formal rating decision.
Note:  An administrative determination about willful misconduct for substance abuse must be approved by a coach, as described in M21-1, Part III, Subpart v, 1.D.4.e.

III.v.1.D.6.c. When an LOD Determination Is Not Required

An LOD determination is not required in the following cases:
  • a service department makes a formal or informal determination that a disability or death was incurred in the LOD
  • service records show that death occurred while flying in a military aircraft while on duty
  • service records show the injury was incurred accidentally or under circumstances which obviously indicate accidental incurrence, especially if incurred in a combat zone, except when specific information citing circumstances of unauthorized leave or willful misconduct exists
  • for claimants of verified full-time National Guard service under 32 U.S.C. 502 as part of the Active Guard Reserve and the evidence shows that the claimed disability is a result of an illness or injury incurred or aggravated while in that status, as long as their duty status is verified and there is noindication of willful misconduct, and
  • cases involving vehicular accidents are involved, except when there is positive evidence of record showing potential willful misconduct, such as
    • medical records, or
    • police reports showing intoxication of the Veteran at the time of the accident.
Note:  Accept service department findings as conclusive for VA purposes, unless a preponderance of evidence indicates willful misconduct.

III.v.1.D.6.d.  When an LOD Determination Is Required

If SC is claimed for disability or death due to an injury incurred in service, determine whether the disability or death was incurred in the LOD.
Prepare a formal favorable or unfavorable VA determination, as to whether the injury occurred in the LOD if the service department
  • did not make such finding and the injury or death was incurred under circumstances which raise a legitimate issue of willful misconduct
  • holds the disability or death to be not in the LOD, or
  • holds the disability or death to be in the LOD, but its finding may be properly questioned.
References:  For more information on
  • determining whether the disability or death was incurred in the LOD, see38 CFR 3.1(m), and
  • Survivors Pension eligibility, see 38 CFR 3.1(d).

III.v.1.D.6.e.  LOD Determinations When Death Occurred on or After January 1, 1957

If death occurred on or after January 1, 1957, the service departments are notrequired by law to make a formal LOD finding.  However, the service departments have agreed to continue making investigations and furnishing reports to VA when requested.
Do not assume that an investigation was made in every case.  In the request for a report, state briefly what is required, either in the form of a
  • question
  • a request for a known record, or
  • a request for a record that likely exists.

III.v.1.D.6.f.  Organic Diseases and Disabilities Resulting From Chronic Use of Alcohol

For claims filed
  • on or before October 31, 1990, organic diseases and disabilities that are a secondary result of chronic use of alcohol, whether out of compulsion or otherwise, are considered to have been incurred in the LOD, and
  • after October 31, 1990, organic diseases or disabilities secondary to chronic use of alcohol are not considered to be incurred in the LOD.
Note:  Prior to August 13, 1964, organic diseases and disabilities resulting from the chronic use of alcohol were considered to be due to willful misconduct.
Reference:  For information about rating decisions on diseases related to use of alcohol, see M21-1, Part IV, Subpart ii, 2.K.2.
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