Correct Legal Standard for Willful Misconduct

What is the Deep Issue in the Case?

Author note: Typically, I work to keep "Deep Issue" summaries below 100 words. I believe this decision is significant, and have worked to keep the Deep Issue as brief as possible while accurately portraying the legal and factual issues leading to the outcome.

A service department finding that an injury was not the result of willful misconduct is binding on the VA unless it is patently inconsistent with the facts and the requirements of laws administered by the VA. 38 C.F.R. § 3.1(n). The BVA shall consider all evidence and materials of record and applicable provisions of law and regulation before rendering its decision. 38 U.S.C. § 7104(a).

A veteran was involved in a car accident in service; with a BAC of .12, he was charged with and plead guilty to a charge of negligent driving. A Coast Guard line of duty investigation found that while alcohol and fatigue were a factor in the accident, the accident was not the result of willful misconduct. Months later, a Coast Guard command inquiry was alleged to have concluded the opposite: that the accident was the result of willful misconduct. The second command inquiry was not in the record, and it was issued after the veteran was honorably discharged from active service.

The veteran claimed service connection for injuries related to the accident. The BVA denied his appeal, holding that the guilty plea and BAC created a presumption that the accident was the result of willful misconduct. The BVA mentioned but did not address or resolve the discrepancy between the 2 line of duty investigations. The CAVC also noted the different line of duty conclusions, but did not address or resolve the factual discrepancy. The CAVC affirmed the BVA's presumption, finding that it was plausibly credible and supported by adequate reasons and bases.

Did the BVA err when it failed to consider all evidence of record and did not resolve a discrepancy between 2 conflicting pieces of evidence, instead choosing to create a new evidentiary presumption of what constitutes willful misconduct for the purposes of denying disability compensation?

What did the FCOA Decide?

The Federal Circuit found that the solution to a conflict in evidence was not to ignore the evidence, but to consider the statutes and regulations which governed its review.

The Federal Circuit held that the BVA erred when it made its own findings on a material question of law (willful misconduct) when there were service department findings before it.

The Federal Circuit vacated the CAVC decision and remanded it for further proceedings regarding the application of the regulation governing willful misconduct and service department findings in line of duty investigations.

Takeaway Points for VSOs and Veterans Disability Lawyers:

I am going to hold off on extensive review of this decision until I have read the relevant documents from the BVA to Federal Circuit Briefs and oral arguments.

At first glance, I feel that this decision opens an important door for better review of BVA decisions.

Most remands by the CAVC are on the issue of the adequacy of reasons and bases made by the BVA for a particular conclusion on a material fact or legal element. As a result, most attorneys arguing before the CAVC frame their briefs on the adequacy of the BVA's reasoning. When the CAVC decides these cases, they are often unreviewable by the Federal Circuit, which lacks jurisdiction to review issues involving application of law to fact.

At first blush, Crediford reminds us that the BVA is statutorily required to consider relevant evidence and applicable statutes and regulations before issuing its decision. In cases where conflicting evidence is before the BVA, and it fails to address a separate statutory or regulatory basis for weighing that evidence, 38 USC §7104 may be a separate basis for relief at the CAVC.

If the CAVC fails to address the statutory and regulatory rules governing the review of the conflicting evidence, there may - and I stress the extremely tenuous connotation of the word "may" - be an opportunity for relief at the Federal Circuit Court of Appeals.

More on this later, after I have thoroughly researched and contemplated the proceedings that led to this decision, but here is the general takeaway:

When you have conflicting evidence on a specific material fact before the BVA, point out the discrepancy clearly to the BVA judge - at the hearing or in your brief.

If the evidence creates a material discrepancy on a material fact that goes to a material element, I think Crediford is "in play" at the CAVC.

If the BVA judge ignores that evidence, or does not consider the statute or regulation that governs how it is to be weighed or reviewed, be sure to contact and retain an appellate attorney who practices at the CAVC to argue that Congress requires the BVA to consider and address the conflicting evidence.

Case Details

At the Federal Circuit:

FCOA Panel:

Circuit Judge Pauline Newman (Opinion Author) (link to bio on Federal Circuit Court of Appeals website)

Circuit Judge Kathleen M. O'Malley (link to bio on Federal Circuit Court of Appeals website)

Circuit Judge Evan J. Wallach (link to bio on Federal Circuit Court of Appeals website)

Veteran Representation at Federal Circuit: Ken Carpenter

DOJ Attorney at Federal Circuit

Date of Decision: December 18, 2017

Link to Decision on Federal Circuit Court of Appeals Website.

At the CAVC:

CAVC Judge: Chief Judge Robert N. Davis - Opinion Author (link to bio on CAVC page)

Veteran Representation at CAVC: Peter J. Meadows (on the briefs)

OGC Attorney at CAVC: Daenia L. Peart

Date of CAVC Decision: August 31, 2015

Link to Memorandum Decision on CAVC Website.

At the BVA:

Regional Office: Oakland CA VARO

Vets’ Rep at BVA: Military Order of the Purple Heart

Board of Veterans Appeals Veterans Law Judge: A.C. Mackenzie

Date of Board Decision: June 30, 2014

Link to BVA Decision on CAVC Website