Myore v. Brown
9 Vet. App. 498, 1996 WL 635327, 1996 U.S. Vet. App. LEXIS 860 (1996)
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Rule of Law:
When determining if a veteran's death constitutes 'willful misconduct' that bars survivor benefits, the Board of Veterans' Appeals (BVA) must provide a detailed statement of reasons that specifically applies the regulatory definition of willful misconduct and fully analyzes evidence of potential suicide under regulations that may negate a finding of misconduct.
Facts:
- Kenneth B. Myore was a Sergeant in the U.S. Marine Corps with extensive formal training and experience with weapons.
- On May 25, 1990, while on authorized leave, Myore went to a friend's house where he and others consumed alcohol for approximately ten hours.
- During the gathering, Myore brought an ammunition can containing two unloaded firearms into the house.
- Myore stated, 'This is what my troops do sometimes,' pointed an unloaded .38 caliber revolver at his own head, and pulled the trigger.
- He then placed one round in the revolver's cylinder, spun it, placed the gun to his head, and pulled the trigger; the gun did not fire.
- Myore spun the cylinder a second time, again placed the revolver to his head, and pulled the trigger, at which point the gun discharged, inflicting a fatal wound.
- Myore died approximately 11 hours later in a hospital.
Procedural Posture:
- In July 1990, the veteran's widow, Martha M. Myore, filed a claim for Dependency and Indemnity Compensation (DIC) with a Department of Veterans Affairs (VA) regional office (RO).
- In May 1991, a VA administrative decision found the death was not in the line of duty due to willful misconduct.
- In June 1991, the RO formally denied service connection for the cause of death.
- Myore (appellant) appealed the RO's decision to the Board of Veterans' Appeals (BVA).
- In December 1993, the BVA issued a decision affirming the denial, finding the veteran’s death was the result of his own willful misconduct.
- Myore (appellant) appealed the BVA's final decision to the U.S. Court of Veterans' Appeals.
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Issue:
Did the Board of Veterans' Appeals provide an adequate statement of reasons or bases for its finding that a veteran's death from playing Russian roulette was the result of his own willful misconduct, thereby precluding survivor benefits?
Opinions:
Majority - Steinberg, J.
No, the Board of Veterans' Appeals failed to provide an adequate statement of reasons or bases for its decision. The BVA's conclusion was deficient because it did not properly apply the specific regulatory definition of 'willful misconduct,' which requires either conscious wrongdoing or a wanton and reckless disregard of probable consequences. The Board's simultaneous characterization of the death as both an 'accident' and 'willful misconduct' is contradictory, as an accident is by definition unintended, whereas willful misconduct involves a level of intent or reckless disregard. Furthermore, the Board failed to address material evidence suggesting suicide, such as the Medical Examiner's report and the fact that the veteran pulled the trigger twice. By ignoring this evidence, the Board failed to apply 38 C.F.R. § 3.302, which establishes that a suicide without an adequate motive creates a presumption of mental unsoundness, potentially negating a finding of willful misconduct. The case is remanded for the BVA to properly analyze the evidence under the correct legal standards.
Dissenting - Ivers, J.
Yes, the BVA's decision was adequately supported and should be affirmed. The overwhelming and obvious evidence shows that an experienced Marine sergeant knowingly engaged in Russian roulette, a 'deadly game of chance.' Such an act is plainly willful misconduct, and there is no need for conjecture about the veteran's psychological state. With the exception of one checkmark on a medical report, there is no evidence the veteran intended to kill himself; even the appellant's own brief argues suicide is an unbelievable conclusion. Remanding the case forces the Board to engage in pure speculation, ignoring the clear fact that the veteran's death was the direct result of his own reckless and willful actions.
Analysis:
This decision establishes an important procedural safeguard for veterans' benefit claimants by requiring the BVA to conduct a more rigorous and logically consistent analysis in 'willful misconduct' cases. It prevents the BVA from making conclusory findings, forcing it to explicitly connect the facts to the specific elements of the regulatory definition of misconduct. The case is significant for highlighting the potential conflict between a finding of 'accident' and 'willful misconduct,' and for mandating consideration of the suicide regulation (38 C.F.R. § 3.302) as a potential pathway to negate misconduct. This precedent requires the BVA to give full consideration to evidence of mental unsoundness, strengthening the position of claimants in cases involving high-risk behavior or potential suicide.
