Service Connection / Retired

[Dean]

I am trying to help someone.

This person was medically retired recently from the Air force. The person does have disabilities from the military, and he went to a military board. The Air force told him that they were going to file his papers with the V.A.. I thought that this seemed strange for them to do this. He has not filed any V.A. claims himself yet. I have read through his records and most of his disability was self inflicted while he was off duty. This person dove into a pool and hurt his back bad. This person also had a motorcycle wreck while he was in the military. He was put on light duty for just about the entire time after his back injury. I can not see anything in his records that indicate the military doing anything wrong to cause his disability to get worse. They even stated in the discharge that he could not perform his duties, because of the pain medication that he was on. This person does have some things that would be service connected. I am stumped on getting him service connected on the back injuries, because he dove into a pool while off duty. I am looking at the fact that he was in the military when this happened and they might not have done everything that they could to help him. I am very stumped at the fact that they medically retired him on all of the disabilities that he did while on and off duty. I know that I am being vague about some of the stuff, but this is a little complicated. Do I try to file for disability on everything just to see how they look at it? This medical retirement is really messing with me. He was only in for 7 years. :) <_< B)

[Vike17]

Dean,

Regardless if your friend incurred those disabilities on or off duty, they still will be considered for service-connection. If your friend is still within one year of his retirement, then he/she should file the disability compensation paperwork and the effective date will be the day after their retirement.

The only thing that your freind may want to be aware of is, if those disabilities that were incurred while off duty were in any way do to 'wilful and persistant misconduct,' the VA will probably do a "in the line of duty determination." This means, for example, if the motor cycle accident was caused because your friend was drinking and driving, then the VA will more than likely deny any possible service-connection because of this being 'wilful and persistant miscinduct.' Does this make sense?

Hope this helps!

Vike 17

[RockyA1911]

The VA does not do the LOD determinations, in his case the JAG of the Air Force furnishes the LOD statement. I was in the Marine Corps and the VA requested the LOD determination from the Navy JAG.

Also, if he was on AUTHORIZED liberty and diving in the pool is not considered "negligence or own willful misconduct" and therefore service connected. Have your friend write to the Air Force JAG and request "Line of Duty Determination, LOD" from them.

If he was on unauthorized liberty when he jumped in the pool, that is not considered LOD, but willful misconduct.

Was your friend ever paid a lump sum medical discharge from the Air Force?

Edited: BTW, there should have already been copies of the injury investigation report from the Air Force for both separate non-duty injuries. This is done by all branches of the service when an injury occurs and is documented and included in the report of investigation surrounding circumstances of injury. The LOD and Report of investigation are included as attachments with all medical board decisions.

Your friend had to have a medical board decision that determined he be discharged medically.

All of this should be available from the National Records Center right out of his file. Or specifically request the med board decisions and injury reports of investigation, and LOD determination for each.

The only time it will not be service connected is if it was determined to be "Willful negligence or own misconduct." If the LOD states "in line of duty", it is service connected period regardless of he was on authorized liberty or not.

Edited December 24, 2006 by RockyA1911

[Guest fla_viking]

Dear Fellow Veterans & Friends

Off duty injurys is what some folks in DC were raising hell about and why should they get covered.

I belive it is illegal for us to even buy our own insurance on the civilan market to cover such injurys. None the less I bet those who would deny this vet coverage. Would not hessitate to file there own claim if they jumped into a pool and were injuried. I bet they even have disablity insurance to replace there lost income. The deal the military made with us is for full coverage. We have nothing more than what most americans are allowed to have.

They did a study on returning war vets from Iraq and found some of them got addicted to speeding cars or motorcycles because of the adreliin rush they got from combat and they need that. Some aciddents off duty can be directly related to duty and we may not understand that.

I dont think those who would begrudge this vet his compensaton have to much to worry. Combat injuries are being frivously denied and take years to get ruled on.

Terry Higgins

[Vike17]

Rocky,

I was actually refering to the motorcycle accident in the Line of Duty case, not diving into the pool incident.

Generally, the VA will obtain the Service Department's assesment as to the status of the accident and will normally find their findings conclusive for VA purposes. However, the VA still has the authority to decide against the individual Service Departments findings if there is "overwhelming evidence" otherwise of records. Line of Duty determinations must be in accordance to VA laws, not any rules such as the UCMJ ect...

§3.1 Definitions...

(m) “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 unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:

(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.

(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.

(3) 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. (Authority: 38 U.S.C. 105)

Note: See §3.1(y)(2)(iii) for applicability of “in line of duty” in determining former prisoner of war status.

(n) “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 Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs

§3.301 Line of duty and misconduct.

(a) 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, the result of his or her abuse of alcohol or drugs. (Authority: 38 U.S.C. 105)

(B) Willful misconduct. Disability pension is not payable for any condition due to the veteran's own willful misconduct. (Authority: 38 U.S.C. 1521)

© Specific applications; willful misconduct. For the purpose of determining entitlement to service-connected and nonservice-connected benefits the definitions in SSSS3.1(m) and (n) of this part apply except as modified within paragraphs ©(1) through ©(3) of this section. The provisions of paragraphs ©(2) and ©(3) of this section are subject to the provisions of SS3.302 of this part where applicable. (Authority: 38 U.S.C. 501(a))

(1) Venereal disease. The residuals of venereal disease are not to be considered the result of willful misconduct. Consideration of service connection for residuals of venereal disease as having been incurred in service requires that the initial infection must have occurred during active service. Increase in service of manifestations of venereal disease will usually be held due to natural progress unless the facts of record indicate the increase in manifestations was precipitated by trauma or by the conditions of the veteran's service, in which event service connection may be established by aggravation. Medical principles pertaining to the incubation period and its relation to the course of the disease; i.e., initial or acute manifestation, or period and course of secondary and late residuals manifested, will be considered when time of incurrence of venereal disease prior to or after entry into service is at issue. In the issue of service connection, whether the veteran complied with service regulations and directives for reporting the disease and undergoing treatment is immaterial after November 14, 1972, and the service department characterization of acquisition of the disease as "willful misconduct" or as "not in line of duty" will not govern.

(2) 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, in the drinking of a beverage to enjoy its intoxicating effects, 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. (See SSSS21.1043, 21.5041, and 21.7051 of this title regarding the disabling effects of chronic alcoholism for the purpose of extending delimiting periods under education or rehabilitation programs.) (Authority: 38 U.S.C. 501(a))

(3) Drug usage. 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 proximately and immediately 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. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) 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. (Authority: 38 U.S.C. 105, 1110, 1121, 1131, 1301, and 1521(a))

(d) Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. (Authority: 38 U.S.C. 105(a))

[26 FR 1579, Feb. 24, 1961, as amended at 37 FR 24662, Nov. 18, 1972; 54 FR 31951, Aug. 8, 1989; 55 FR 13530, Apr. 11, 1990; 60 FR 27408, May 24, 1995]

Cross references: In line of duty. See SS3.1(m). Willful misconduct. See SS3.1(n). Extended period of eligibility. See SSSS21.1043 and 21.7051. Periods of entitlement. See SS21.5041.

Alos take a look at M21-1MR, Part III, Subpart V, §'s 16, 17, and 19.

Vike 17

[cowgirl]

(2) 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, in the drinking of a beverage to enjoy its intoxicating effects, 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. (See SSSS21.1043, 21.5041, and 21.7051 of this title regarding the disabling effects of chronic alcoholism for the purpose of extending delimiting periods under education or rehabilitation programs.) (Authority: 38 U.S.C. 501(a))

Ever heard or is it possible that 'willful misconduct' considered "in line of duty" could be 'set aside' if the veteran was priorly 'diagnosed' or 'treated' with alchohlic condition, in treatment or under psycholgical care/counseling ?? thanks, cg

[Dean]

Thanks everyone. The retirement part is what was confusing me. They were telling him, or he understood wrong.....He told me that they were going to file a claim for him. He just went through this a couple of months ago. I tried to tell him everything to do before he was retired. I made sure that he went to medical for anything that he had wrong with him before he got out. I even had him tell them that he needed something for his nerves because he was not coping with all of it that good. He is going through a lot right now. He is going from about $3,000.00 a month to around $750.00 a month. I made sure that he did not take a lump sum. I just hate the way that retired people are done. I do not like the way that they can not get a retirement chech and a disability check. I know about the offset for taxes, but that is not fair to them at all. A person like me can get a Social Security check for being disabled and a disability check from the V.A., but if a person retires from the military they get screwed. I know that they were trying to stop this at one time, but I have not seen it done yet. B)

I notice a lot more new people around here now. I like to see that... I expected to see Berta comment on this. I guess she has not found this yet, or figured out that it was answered good enough. The person that put the laws in the post for me really helped a lot. <_<