The Department of Veterans Affairs (VA) will not grant disability compensation or pension to a veteran for an injury or illness that was the result of willful misconduct, even if the veteran meets the other basic eligibility requirements for veterans benefits. Likewise, if a veteran's death is found to be the result of willful misconduct, the surviving family won't be able to obtain disability and indemnity compensation.
Willful misconduct that causes a disability also prohibits veterans' eligibility for vocational rehabilitation benefits. But if the veteran has another service-connected disability that wasn't caused by willful misconduct, they may be eligible for compensation and vocational benefits based on that service-connected disability.
"Willful misconduct," as defined in 38 CFR 3.1(n), means an act involving conscious wrongdoing or known prohibited action. For example, reckless driving can be considered willful misconduct when most of the evidence shows that the veteran's disregard for the consequences of driving recklessly caused his injury or death.
In addition, disabilities incurred while committing a violent crime will not be eligible for benefits. However, violating a rule or law won't be considered willful misconduct unless it actually causes the injury or illness. VA regulations address when specific issues, including substance abuse, tobacco use, sexually transmitted diseases, and death by suicide can disqualify veterans from disability benefits.
Under VA regulations, alcohol and drug abuse constitutes willful misconduct, so disabilities caused by alcohol or drug abuse can't qualify veterans for disability compensation or pension. However, the analysis of whether a particular injury or death was caused by substance abuse is extremely fact-specific.
Generally, alcohol abuse is considered willful misconduct when the drinking continues for a long period of time, is excessive to the point that it causes injury or death, or is done for the purpose of enjoying intoxication and directly and immediately causes injury or death.
Let's look at how these rules play out in some hypothetical examples. Say a service member drinks excessively in order to become intoxicated, gets into a car, and drives into a tree. After discharge from service, this veteran will be barred from getting disability compensation for the resulting injuries.
On the other hand, if a service member has a couple of drinks (without intending to become drunk) and has a car accident, the use of alcohol will be one factor considered—but not conclusive—in deciding whether there was willful misconduct. In this case, other factors the VA will consider include whether the vet was speeding or distracted by their phone (which will likely result in a denial of benefits) or whether they were driving safely and at the proper speed (which may result in an award of benefits, provided the alcohol use didn't directly cause the accident).
Ultimately, a determination of whether alcohol abuse rises to the level of willful misconduct is often made based on the veterans' blood alcohol content (BAC) percentage at the time of the accident. A very low BAC % won't, by itself, prevent veterans from collecting benefits.
Just like with alcohol abuse, the VA will only deny benefits due to willful misconduct when a veteran's drug abuse directly results in the disabling injury or death. Drug abuse is considered willful misconduct when the veteran uses the drug to enjoy getting intoxicated for a purpose other than the intended medical use, and the drug is either illegal or a legal prescription drug obtained through illegal means.
Say a service member uses methamphetamine recreationally and breaks into a store, cutting themselves on the shattered glass. The cut becomes infected, causing necrosis of the arm that results in amputation. After discharge from service, the veteran won't be able to then get disability compensation based on the amputation.
The occasional use of a drug, even if it's illegal, won't rise to the level of willful misconduct unless using the drug actually caused the injury or death. If a prescription drug is taken as prescribed and is used as medically intended, this isn't considered drug abuse even if it results in an addiction to the drug.
In some circumstances, if a veteran has an injury or illness that resulted from substance abuse, and the addiction began (or got worse) because of a service-connected disability, the veteran can receive disability compensation for the secondary injury or illness.
For example, if a veteran develops PTSD and begins drinking or abusing drugs to treat the symptoms of that disorder, the veteran may qualify for a disability rating for any injuries they incur from the substance abuse. In VA terms, this is known as "secondary service connection," because even though the injury isn't directly caused by PTSD, there's still a correlation to the veteran's military service.
However, you can only establish a service connection this way when the secondary illness or injury occurs after discharge from service. Disabilities caused by alcohol or drug abuse while on active duty are still prohibited from compensation.
Veterans who have service-connected mental illnesses are, unfortunately, at a higher risk of death by suicide. If a veteran has an "unsound mind" (incapable of having intent) as the result of service-connected mental disorder and later dies by suicide, their family can receive survivors benefits. However, if the veteran was of "sound mind," the family may lose access to these benefits. Whether or not the veteran was of sound mind is up to the VA, but generally the act itself will be enough evidence to show an unsound mind.
Whenever a service member is injured or dies while on active duty, there is a presumption that willful misconduct was not the cause. If the VA wants to keep a veteran or a veteran's family from receiving disability or survivors' benefits, the VA has to prove by a preponderance of the evidence that the veteran engaged in willful misconduct. This isn't a hard standard to meet, however—the VA just has to show that it's "more likely than not" that willful misconduct occurred.
If you're a veteran or surviving family member who was denied disability compensation or pension on the grounds that the disability or death was caused by willful misconduct, you should consult a VA disability lawyer. An experienced attorney may be able to successfully appeal the decision and make sure that you and your loved ones can receive VA benefits.
Most VA attorneys offer free consultations and don't get paid unless you win your claim, so there's little downside to getting a lawyer. There are also many legal organizations that provide free or low-cost representation for veterans. To learn more about your options, see our article on hiring a VA disability attorney.
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