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M21-1, Part III, Subpart v, Chapter 1, Section F – Considering Eligibility When Homicide Is Involved

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
 4
5
6

1.  General Information on Cases Involving a Homicide


Introduction

This topic contains general information on handling cases involving a homicide, including

Change Date

November 14, 2011

III.v.1.F.1.a.  Effect of a Homicide Determination on the Right to Benefits

The issue of homicide, or wrongful death, is a question of fact.  Whether or not a claimant or beneficiary wrongfully and intentionally caused the death of a Veteran or another beneficiary affects the right of a claimant to Department of Veterans Affairs (VA) benefits.
Reference:  For more information on the prohibition of benefits due to wrongful death, see 38 CFR 3.11.
Important:  Regardless of a favorable VA finding about a claimant’s involvement in the death of a Veteran or other beneficiary, remember that incarceration of the claimant may affect payment of benefits.  For more information on regulations concerning adjustment of benefits due to incarceration, see M21-1, Part III, Subpart v, 8.A.1.

III.v.1.F.1.b.  Responsibility for Making a Homicide Determination

The development activity is responsible for making a homicide determination.  The Veterans Service Center Manager or Pension Management Center Manager may delegate the authority for approval of the homicide determination to a supervisor not lower than a coach.
Reference:  For more information on preparing administrative decisions, see M21-1, Part III, Subpart v, 1.A.3.

III.v.1.F.1.c.  Participation in Wrongful and Intentional Killing

Do not pay benefits to a claimant if it is an established fact that the claimant wrongfully and intentionally
  • took the life of a Veteran or beneficiary
  • encouraged or induced another to take the life of a Veteran or another beneficiary
  • participated as an accomplice in the homicide
  • assisted in the planning or preparation leading to the homicide, or
  • otherwise aided and abetted the person causing the death.
For adjudicatory purposes, a wrongful and intentional killing is one in which the claimant or beneficiary caused the death of the Veteran or another beneficiary without justification or excuse.
Justification or excuse may be found if it is established that the death was
  • the result of
    • an accident, or
    • self-defense, or
  • committed while the claimant was insane.
Reference:  For more information about the effect of insanity on an administrative decision, see M21-1 Part III, Subpart v, 1.E.1.

III.v.1.F.1.d.  Language for Denial Letters to Claimants Implicated in the Homicide of the Veteran

Avoid any reference or charge of guilt or implication in the homicidal death of the Veteran in the disallowance letter.  Use the following language:
Based on the available evidence, we find the Veteran’s death was incurred under circumstances that prevent payment of VA benefits to you based on that death.

2.  Developing for Evidence in the Death of a Beneficiary by Homicide


Introduction

This topic contains information on development when a claim is received and death of a beneficiary is a homicide, including

Change Date

November 14, 2011

III.v.1.F.2.a.  Determining if a Claimant Was Implicated in the Death of a Beneficiary

If the available evidence indicates that the death of the Veteran or a beneficiary is the result of a homicide, determine whether or not the claimant was implicated in the death before authorizing payment of survivors benefits.
Important:  Do not develop for further evidence if it can be determined by inquiry to the local sheriff or police that the claimant was not or could not have been implicated in the homicide. This may be true even if the person or persons responsible for the death are unknown.

III.v.1.F.2.b.  Obtaining Evidence Regarding Homicide

Typically, obtain relevant evidence required through correspondence with any of the following sources:
  • police
  • sheriff
  • medical examiner
  • prosecuting attorney
  • clerk of the court, or
  • other persons having knowledge of the circumstances.
If the information cannot be obtained from these sources, request a field examination to obtain the necessary evidence.
Reference:  For more information about requesting field examinations, see M21-1, Part III, Subpart vi, 8.8.

III.v.1.F.2.c.  Correspondence Related to Homicide

Carefully word any correspondence to the claimant or persons outside VA when requesting information in connection with death by homicide.  Ensure there is no inference that VA suspects or implies that the claimant or any other particular person may be guilty or implicated in the homicide.

III.v.1.F.2.d.  Handling Evidence or Information Connecting the Claimant With the Homicide

If there is evidence or information connecting the claimant with the homicide, then develop by field examination to obtain all the facts.
Important:  Do not request copies of grand jury records under any circumstances, either by letter or field examination.
Reference:  For more information about requesting field examinations, see M21-1, Part III, Subpart vi, 8.8.

III.v.1.F.2.e.  Obtaining Information From Recorded Testimony Related to Homicide

It may be necessary to request that the field examiner review the court records to obtain pertinent information from recorded testimony at a trial as well as names of witnesses.
Request transcripts of recorded testimony only in extreme cases in which the question cannot otherwise be resolved.
Reference:  For more information about requesting field examinations, see M21-1, Part III, Subpart vi, 8.8.

3.  Facts to Consider in a Wrongful and Intentional Killing


Introduction

This topic contains information on the facts to consider in a wrongful and intentional killing, including

Change Date

February 19, 2019

III.v.1.F.3.a.  Death as a Result of an Accident

A death may be considered accidental if the chain of circumstances resulting in the fatality was not set in motion for the purpose of causing death.

III.v.1.F.3.b.  Death as a Result of Self-Defense

It may be found that the claimant acted in self-defense and that the death occurred as a result of the claimant’s action to protect himself/herself.  Consider the following circumstances as possible evidence of self-defense:
  • the claimant suffered an immediate fear of
    • loss of life
    • incest, or
    • other serious emotional or bodily harm by reason of threatening acts of the deceased
  • there was no logical avenue of escape or retreat for the claimant, and
  • the deceased was in a position and had the apparent means to commit the crime.
Important:  Examine and weigh all facts and circumstances surrounding the killing, regardless of the action taken by civil authorities, to determine if the claimant’s allegation of self-defense is sustained by the information and evidence available.

III.v.1.F.3.c.  Homicide Committed While Insane

If the claimant or beneficiary caused the death of the Veteran or another beneficiary, and it is established that such act was committed while insane, the killing will not bar the claimant from receiving survivors benefits.

III.v.1.F.3.d.  Determining When to Request Additional Evidence Regarding the Claimant’s Sanity

Use the table below to determine when to request additional evidence regarding the claimant’s sanity.
If …
Then …
the question of the claimant’s sanity at the time of the killing was determined in a judicial proceeding connected with the trial on the criminal charge
accept the determination without further development.
a judicial determination of insanity was made at or before a trial without any determination as to the sanity of the claimant at the time of the killing
obtain all the evidence and information available with respect to the
  • circumstances surrounding the killing, and
  • mental condition of the claimant at the time of the killing.
Note:  Determine the claimant’s sanity at the time of the killing based on consideration of all available evidence.

III.v.1.F.3.e.  Evidence Showing the Claimant Is Insane

Consider the claimant insane at the time of commission of the act if he or she was laboring under such a defect of reason from disease of mind or mental deficiency that he or she
  • did not know the nature and consequence of the act, or
  • knew the nature and consequences of the act but did not perceive the act as wrong.
Reference:  For a description of the definition of insanity, see 38 CFR 3.354.

III.v.1.F.3.f.  Submitting the Case for Rating Determination on the Claimant’s Sanity

If there is a question as to the claimant’s sanity at the time of the killing, submit the case to the rating activity after development has been completed.
Unless reversed on legacy appeal or under decision review, the determination of the rating activity is conclusive on the question of the claimant’s sanity or insanity at the time of the killing.
Reference:  For more information on insanity, see M21-1, Part III, Subpart v, 1.E.1.

4.  Considering Judicial Proceedings in Homicide Determinations


Introduction

This topic contains information on the effect of judicial proceedings on a VA determination, including

Change Date

November 14, 2011

III.v.1.F.4.a.  Rules of Evidence in Criminal Versus Civil Cases

The rules of evidence, practice, and procedure in a criminal proceeding differ from those of a civil action in the following manner:
  • in a criminal proceeding, guilt must be proved beyond a reasonable doubt, but
  • in a civil action, the issue is determinable upon a preponderance of evidence.
Therefore, adjudication in a civil action is not determinative as to the criminal
proceeding.

III.v.1.F.4.b.  VA’s Authority to Bar Benefits Based on Evidence of Homicide

The guilt or innocence of a claimant accused of feloniously or intentionally causing the death of the Veteran or another beneficiary is a question of fact that affects the rights of the claimant.
VA has the authority to
  • determine guilt or innocence based on the preponderance of evidence that the accused is guilty in any given case, and
  • bar the claimant’s right to benefits, if VA finds the claimant guilty, independent of any verdict in a criminal court.

III.v.1.F.4.c.  When to Develop for Additional Evidence Regarding Homicide

Use the table to determine when to develop for additional evidence and make a determination regarding homicide.
If the claimant …
Then …
is convicted
  • do not make any further effort to develop the case, and
  • accept the verdict of the court to bar entitlement to survivors benefits.
  • is acquitted or a conviction in a lower court is reversed on appeal
  • has not yet been brought to trial, or
  • is suspected of homicide, but was never brought to trial
develop for the facts surrounding the death to make a determination, regardless of the action of a
  • grand jury
  • medical examiner
  • prosecuting attorney, or
  • law enforcement agency.
Reference:  For more information on the prohibition of benefits due to homicide, see 38 CFR 3.11.

5.  Handling Effects of Adverse Determinations


Introduction

This topic contains information on the effect of adverse finding on the various classes of claimants or beneficiaries, including

Change Date

November 14, 2011

III.v.1.F.5.a.  Determining the Effect of the Homicide of a Veteran

Use the table below to determine the effect of wrongful and intentional killing of a Veteran.
If the Veteran’s death is wrongfully and intentionally caused by …
Then …
a surviving spouse
  • deny the claim, and
  • make any award of survivors benefits to the Veteran’s children in an amount which would have been payable to them had they been the sole original beneficiaries.
a parent
  • deny that parent’s claim, and
  • pay the other parent, if any, the amount which would have been payable had that parent been the sole original beneficiary.
the child, and the
  • surviving spouse is entitled to benefits, and
  • child is in the custody of the surviving spouse
the surviving spouse may be awarded additional survivors benefits on account of the child if the surviving spouse is entitled to benefits and retains custody of the child.
Note:  The question of whether or not payment to the child might be barred because the child caused the death of the Veteran is immaterial when the child is in the custody of the surviving spouse. Under such circumstances, it is the surviving spouse who is entitled and the child has no right or entitlement to any part of such benefits.
the child, and
  • the surviving spouse is entitled to benefits, and
  • the child is not in the surviving spouse’s actual or constructive custody
  • pay the surviving spouse the amount which would have been payable if that child did not exist, and
  • determine the rates payable in awards to other children entitled to an apportioned share as though this child did not exist.
the child, and the surviving spouse is not entitled to benefits
  • deny the claim, and
  • increase the rates for other surviving children, if any, as though the child who did the wrongful act did not exist.

III.v.1.F.5.b.  Effect of a Homicide of a Beneficiary

The rule that a wrongdoer may not profit by a wrongful act applies equally to a beneficiary of Survivors Pension, Dependency and Indemnity Compensation (DIC), and accrued benefits who wrongfully and intentionally caused the death of another beneficiary.
The beneficiary’s entitlement as a dependent of the deceased Veteran is not affected, but the dependent cannot receive any increase that is otherwise payable as the result of the other beneficiary’s death.
Use the table below for some example situations and their respective result and action.
Example Situation
Result and Action
The Veteran’s child is receiving survivors benefits and wrongfully and intentionally causes the death of another child in receipt of survivors benefits on the same award.
The child who caused the death cannotprofit from the other child’s death.
Do not pay any increase that would have been payable because of the discontinuance of benefit payments to, or on account of, the deceased child.
The parent wrongfully and intentionally caused the death of the other parent.
The parent who caused the death is precluded from
  • receiving an increase in or DIC as a sole surviving parent, or
  • receiving the rate as a sole surviving parent.

III.v.1.F.5.c.  Effect of Homicide on Entitlement to Accrued Amounts

The effect of adverse determinations stated in M21-1, Part III, Subpart v, 1.F.5.aand b for the various classes of beneficiaries apply equally to claimants for accrued amounts and lump sums payable under 38 U.S.C. 5121 and 38 U.S.C. 5502(d).

Since payment of accrued amounts is governed by a succession of preferred beneficiaries, the wrongful and intentional killing of a preferred beneficiary by one in the

  • next lower order of preference, bars any payment of the accrued amount to the wrongdoer, or
  • same class of beneficiaries, bars the payment of an increased share.

6.  Effect of an Insurance Interpleader on Claims for Other Benefits in Cases Involving Homicide


Introduction

This topic contains information on the effect of an insurance interpleader on claims for other benefits, including

Change Date

November 14, 2011

III.v.1.F.6.a.  Deferring Final Homicide Determination When Insurance Benefits Are Involved

For Survivors Pension, DIC, or accrued amount claims, defer a final homicide determination pending submission of the case to the General Counsel, if
  • the claimant is also a beneficiary of insurance, and
  • the evidence indicates the claimant may have participated in the killing of the person for whose death both VA and insurance benefits are payable.
General Counsel determines the propriety of filing a bill of interpleader for insurance purposes.
Reference:  For more information on the effect of an insurance interpleader on claims for other benefits, see M21-1, Part III, Subpart vi, 6.C.5.

III.v.1.F.6.b.  Considering the Conclusions of Law of the Court

It is the policy of VA to give careful consideration to the findings of fact and conclusions of law of the court in determining the rights of the claimant to the benefit claimed.
However, the decisions of the VA Secretary are final on matters of compensation, pension, and DIC.
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