Does A Ld(line Of Duty) Help Your Claim? How Much?

[theprofessor]

Educate Me!

[iraqx2]

It helped me out BIG TIME!!

That simply piece of paper from the MASH unit was key in evidence when I filed a claim for my back. I hurt my back really bad in Iraq and had to go see a field doctor for meds. Its a good thing that I did not throw that paper away. The VA considered and noted the evidence when they made their decision.

[trailblazer]

Never discard a piece of paper the va or the military gives you. It could be a very important piece of evidence in the future. I wish I had followed my own advice. It would have saved a lot of time and trouble.

[Rockhound]

Ditto on not throwing away any paper that might reflect on your inservice illness or injury. But remember this, the VA can ignore any evidence you present and get away with it only if you give up on your claim.

I have on my medical evaluation summery for which my medical discharge was based on several items referencing how my illness occured, the most notable was DNEPTE (disease not evident prior to enlistment) But as you guessed it, this was completely ignored by the VARO Rater and had I known what I do now, I would have never given up on my own claim and I would have made sure that I not only got ongoing medical care, but did what I could documenting every little thing.

Rockhound Rider

[Wings]

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LINE OF DUTY:

Definition: "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 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 the Department of Veterans Affairs (VA) unless it is patently inconsistent with the requirements of laws administered by the VA.

In the Line of Duty: Direct service connection may be granted 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 or, for claims filed after October 31, 1990, not the result of his or her abuse of alcohol or drugs.

Not in the Line of Duty: Requirements as to not in the line of duty are met if at the time the injury was suffered or disease contracted the veteran was:

Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty. Confined under a sentence of court-martial involving an un-remitted dishonorable discharge. Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.

Need for Determinations: If a service department makes a formal or informal determination that a disability or death was incurred in line of duty, the VA will accept that finding as conclusive unless there is overwhelming evidence of willful misconduct. Similarly, if service records show that death occurred while flying in a military aircraft while on duty status, a determination is not necessary.

The VA will prepare a formal VA determination, whether favorable or unfavorable, as to line of duty 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 or

The service department holds the disability or death not in line of duty or

A favorable service department finding may be properly questioned. Those cases are rare.

Note: Injuries shown by service records to have been incurred accidentally or incurred under circumstances which obviously indicate accidental incurrence, especially if incurred in a combat zone, will not require development or a formal decision unless there is specific information citing circumstances of unauthorized leave or willful misconduct. The VA will not develop for line-of-duty or willful misconduct in cases involving vehicular accidents unless 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.

WILLFUL MISCONDUCT

Definition: "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the VA unless it is patently inconsistent with the facts and the requirements of laws administered by the VA.

Considerations: Injury cannot be held due to willful misconduct on the basis of an act "malum in se" (inherently wrong in itself; immoral) or "malum prohibitum" (forbidden by positive law), unless the wrongful act was, in and of itself, the proximate or direct cause of the resulting injury.

It may be willful misconduct if it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.

It may not be willful misconduct for mere technical violation of police regulations or ordinances.

Difference between Line of Duty & Willful Misconduct: Note the subtle differences in the wording of the two laws defining “line of duty” and willful misconduct. In considering line of duty, the law says “the service department’s finding of in line of duty is binding on VA unless patently inconsistent with the requirements of VA law.” In speaking to willful misconduct, the law says “the service department’s finding of not willful misconduct is binding on VA unless patently inconsistent with the facts and the requirements of VA law.” The addition of this phrase grants VA more leeway in determining the presence or absence of willful misconduct.

Alcohol: The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions, which would raise a presumption to that effect, will be considered willful misconduct. If intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct.

Organic diseases and disabilities, which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.

A person is held responsible for disabling injuries or death which resulted directly and immediately from indulgence in alcohol on an individual occasion. Willful misconduct 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 alcohol.

Determinations of willful misconduct in such instances will depend on the facts found. The VA exercises care to guard against findings of willful misconduct on the basis of inconclusive evidence. An adverse determination requires that there must be excessive indulgence as the proximate cause of the disability or death in question.

In determining willful misconduct, the VA considers laboratory tests bearing on the issue of alcoholic intoxication together with all other facts and circumstances.

Drugs: The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin.

References:

38 CFR 3.1(m)

38 CFR 3.301(a)

38 CFR 3.1(n)

38 CFR 3.301(b)

38 CFR 3.301©(2)

M21-1, Part IV, 11.03; 11.04; 11.04©

Review Exercise

1. While in service, a veteran, highly intoxicated, was a passenger in a civilian vehicle. While being driven back to base, the veteran initiated horse-play with the driver of the vehicle, jerking on the steering wheel and attempting to take the transmission out of gear. As a result, the driver lost control of the vehicle, striking a light pole and causing significant disability to the veteran’s right arm. No line of duty determination was done by the service department. Line of duty? YES NO

2. While in service, veteran was driving home on authorized leave. Although his home was 1000 miles away from the base, and his leave was only for 4 days, he decided that he could drive all night and still be able to spend 2 days at home. He fell asleep at the wheel, which resulted in an accident leaving him a quadriplegic. Service department found the disabilities to be in line of duty. Line of duty? YES NO

3. Three Army telephone linemen are drinking at the NCO club. After remaining there for some hours, they leave. Once outside, one serviceman grabs the cap of another, climbs a telephone pole and places the cap on the top of the pole. The cap-less serviceman then climbs the pole to retrieve his cap and, while reaching for it, falls to the ground, resulting in significant disabilities t the left leg. Service department findings are in-determinative. Willful misconduct? YES NO

4. While in service, veteran takes spouse to restaurant for anniversary dinner. During the course of the meal, they share a split of champagne. Following dessert and coffee, they go to the car to drive home. On the way home, the car skids on the wet road and hits a parked car, resulting in a significant disability to the veteran’s chest. Police report notes the wet roadway, absence of streetlights, and does not mention any finding or comment about alcohol, nor any indication of recklessness on the part of the driver. Willful misconduct? YES NO

5. Serviceman went home after work and took a cooler of beer out to the back yard. He sat in the yard drinking the beer, hoping to spot an owl that had kept him awake the previous 4 nights. A long-distance trucker lived next door. The neighbor returned home at 10pm from a long haul, and parked his semi into the space between the two houses. The serviceman had fallen asleep after consuming several beers while waiting for the owl. He was fast asleep in the yard when the neighbor’s semi backed over him resulting in his death. Post-mortem blood-alcohol tests noted .12 blood-alcohol levels. Willful misconduct? YES NO

6. Serviceman scores some really good methamphetamine from his friends. After ingesting same, decides that he possesses the strength of 10 men, and proceeds to show his friends that he can stop an oncoming train with his bare hands. The task far over-reaching his abilities, the train strikes him, knocking him 650’ down the tracks, killing him. Willful misconduct? YES NO

http://www.tvc.state.tx.us/HTML%20Pages%20...T%20Revised.doc

[Chuck75]

In the past, the VA would often deny service connection for various things, stating not in line of duty, or a similar statement. The law has always held that as long as the problem occurred in or as a result of service, and not a result of "willful misconduct" It is service connectible. The VA still denies using the not service connected statement for things that are obviously service connected.

So yes, any "duty related" statement cannot hurt, and may help. Particularly if there is no other record of treatment.

[deltaj]

The notation LOD yes was probably why my husband was service-connected to begin with. Line of duty determinations are binding on V.A. Try a search on google under line of duty AND binding and you will find some interesting material about 38 CFR 3.1 and 38 CFR 3.301. You can read these regulations by visiting the website of Code of Federal Regulations. 38 CFR 3.1 provides definitions including what is line of duty.