Citation Nr: 0300026 Decision Date: 01/02/03 Archive Date: 01/15/03 DOCKET NO. 95-03 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether the veteran's actions resulting in the shooting death of another serviceman constituted willful misconduct. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran had honorable service in the United States Army from November 1960 to December 1966 and had an unverified prior period of service in the United States Marine Corps from November 1956 to September 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1993 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. In November 1995, the RO issued an administrative decision stating that the veteran's involvement in the in- service shooting death of another serviceman constituted willful misconduct. In January 1998, the Board remanded the case for further development. FINDINGS OF FACT 1. VA has met its duty to notify and assist the veteran. 2. While on guard duty and forgetful that he had loaded his weapon no more than a few hours earlier, the veteran laced his .45 caliber pistol into the mouth of another serviceman and pulled the trigger. The gun fired, resulting in the death of the other serviceman. 3. Although the veteran did not intend to injure or kill the victim, the probative evidence shows that his actions resulting in the shooting death of the other serviceman were conscious, deliberate and intentional wrongdoing; were known prohibited actions; showed a wanton or reckless disregard of the probable consequences of said actions; and were not a mere technical violation of police regulations or ordinances. 4. The probative evidence reflects that to the extent that the veteran has PTSD, his actions resulting in the shooting death of another serviceman are the proximate cause of his PTSD. CONCLUSIONS OF LAW 1. The veteran's actions resulting in the shooting death of another serviceman constituted willful misconduct. 38 U.S.C.A. §§ 105, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.1, 3.102 (2002). 2. Post-traumatic stress disorder was not incurred or aggravated in the line of duty during the veteran's active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.301(a), 3.303, 3.304(f) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records from the veteran's period of service with the United States Marine Corps reflect no evidence of a psychiatric disorder and his separation examination in August 1959 showed that his mental status was normal. Service medical records from the veteran's period of service with the United States Army show a normal psychiatric evaluation on the entrance examination and on an October 1963 physical examination. On the evening of February 10, 1994, while engaged in horseplay with another serviceman, J.L.D., the veteran placed a loaded weapon in J.L.D.'s mouth, fired the weapon and killed J.L.D. On the night of J.L.D.'s death, the veteran was examined prior to being questioned. He was oriented as to time, place, date, and personal identity, and his vital signs were normal. There was no indication of bizarre behavior, except that he stated he was confused about the events of J.L.D.'s death. The impression was that there was no apparent medical reason for the veteran not to be questioned at the present time. On February 11, 1964, the veteran executed a written statement in regard to the shooting of J.L.D. on February 10, 1994. The veteran stated that he was on gate duty when at about 8:30 PM he and J.L.D. observed a motor vehicle stop, apparently discharge someone, and then make a U turn and drive away. The veteran and J.L.D. thought that someone was going to enter the barracks illegally so they separated and searched for the individual. When the veteran saw traffic approaching the gate, he returned there to waive the traffic through. He then tried to locate J.L.D. and called to him. When J.L.D. did not respond, the veteran inserted a magazine with 5 rounds into his pistol, thinking that J.L.D. might be in trouble, and set out to find him. After he located J.L.D., they returned to the gate. The veteran stated that after a while he and J.L.D. "started horseplay" with their 45s (pointing them at each other, quick drawing, cocking the hammer, etc.). After holstering their weapons, the veteran redrew his in a quick-draw fashion, placed it in J.L.D.'s mouth and pulled the trigger, not realizing that the magazine was still in the weapon. The veteran explained that J.L.D. had opened his mouth wide and the pistol was actually inside his mouth when it fired. The veteran further stated that they had been involved in good-natured horseplay and that he had not intended to injure J.L.D. In response to a question by an investigator as to "What was the policy on unit police relative to their weapons," the veteran responded that the policy was "not to insert the magazine into the weapon unless the situation requires the weapon be loaded." He also stated that he had no intention of injuring J.L.D. and that prior to the shooting, they had been engaged in good-natured horseplay. According to a statement by another serviceman, the incident occurred at approximately 10:15 PM. On February 14, 1964, the veteran was charged with a violation of Article 119 of the Uniform Code of Military Justice, involuntary manslaughter, in that he did on or about February 10, 1964, by culpable negligence unlawfully kill J.L.D. by shooting him in the head with a pistol. The Government and counsel for the veteran, with the express consent of the veteran, stipulated to the facts essentially as reported above. A copy of the standard operating procedure (SOP) for unit police at the time of the shooting reveals that a non- commissioned officer was supposed to instruct guards that they were to draw their weapons only under limited circumstances - to apprehend a known dangerous criminal and to prevent certain offenses from being committed - and that in the above cases, guards would not draw, load or fire weapons until all other available means (to include clubs) had been exhausted. The non-commissioned officer was supposed to instruct guards that they would not place magazines (ammunition clips) in their weapons until a final decision on need for use had been determined. The SOP also shows that playing with pistols or other weapons was strictly prohibited and that persons playing with a weapon, having it out of a holster, or firing unnecessarily would be considered to have violated a standing order. On February 18, 1964, an investigating officer's hearing was conducted. The non-commissioned officer (NCO) on duty at the time of the shooting testified that he was in the habit of instructing the veteran daily on SOP on when a weapon should be loaded and that while he did not remember whether he instructed the veteran on the day of the shooting, the veteran had been told just about every day prior to the shooting. The NCO stated that to the best of his knowledge, the veteran was familiar with the SOP with respect to placing ammunition in his weapon, and to the best of his knowledge, all unit policemen were required to read the entire SOP when joining the unit police. Report of Investigating Officer, Transcript of Testimony, Exhibit 3. Service medical records reflect that on February 28, 1964, the veteran had mild depression, and on March 13, 1964, a change in medication was made due to his upcoming trial. In March 1964 the veteran offered to enter into a pre- trial agreement whereby he would plead guilty to the charge of involuntary manslaughter involving "culpable negligence." His offer was accepted. At a March 17, 1964, general court-marital, the veteran pled, and was found, guilty of the charge of involuntary manslaughter. It was noted that Article 119 provided that any person subject to the code who without intent to kill or inflict great bodily harm unlawfully kills a human being by culpable negligence is guilty of involuntary manslaughter. It was indicated that simple negligence was the absence of due care. It was noted that culpable negligence was more than simple negligence; that it was a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of such act or omission; and that it was a gross, reckless, wanton disregard for the safety of others. The veteran was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for two years, and reduction to enlisted grade E-1. Transcript of Proceedings. In an April 1, 1964, Staff Judge Advocate's (SJA) review, it was noted that while this case of involuntary manslaughter did not involve criminal intent, there was culpable negligence of such a character and magnitude as to be a threat to good order and discipline of the Army. The SJA noted in part that the veteran had been a good soldier, was deeply remorseful and had desired to make a career in the Army. The SJA also noted that the sentence adjudged had been in excess of that agreed upon as a condition for the veteran's guilty plea. Thus, the SJA recommended that only so much of the sentence that provided for a bad conduct discharge, confinement at hard labor for one year, forfeiture of $55 pay per month for one year and reduction to the grade of E-1 be approved. The SJA stated that the discharge, six months of confinement at hard labor, and six months of forfeiture of pay had to be suspended for one year from the date of trial, with the suspended portions automatically remitted at the end of that year unless sooner vacated, as per the terms of a pre-trial agreement. A corrected copy of the General Court-Martial Order, dated April 1, 1964, reflects the sentence as recommended by the SJA. A General Court Martial Order dated June 3, 1964, suspended the unexecuted portion of the sentence to confinement at hard labor, effective June 9, 1964, until March 17, 1965, at which time the unexecuted portion of the sentence was to be remitted unless vacated sooner. The order stated that clemency was granted by the Convening Authority in view of the veteran's prior record and his conduct in confinement. On June 4, 1964, a Board of Review at the United States Army Judiciary, Office of the Judge Advocate General, found that the findings of guilty and sentence as approved by proper authority were correct in law and fact and such findings were affirmed. On July 20, 1964, the sentence as it currently stood was affirmed. On December 16, 1964, the unexecuted portion of the veteran's sentence was remitted in consideration of superior job performance and the honorable completion of a military course relating to organizational maintenance of field radio equipment, noted as indicative of the veteran's desire to advance in the service, and the recommendations of the squadron communications officer and the troop and squadron commanders. On a December 1966 separation examination, there were no relevant complaints or history noted and psychiatric evaluation was normal. VA medical records reflect that the veteran was hospitalized in July 1991 for depression and received outpatient treatment for depression through October 1991. He underwent a mental status evaluation by a VA social worker in May 1993, and reported that in service he accidentally shot a good friend. The Axis I diagnoses were PTSD and dysthymia. In a June 1993 statement, R.H. Thomas, M.D., reported that he had treated the veteran since 1989 and that the important events in the veteran's life regarding the development of his functional incapacity included the accidental shooting of a friend. Dr. Thomas noted that the veteran had been receiving counseling for PTSD. The veteran was afforded a VA examination in July 1993. He complained of depression and reported that in service, he accidentally killed his best friend. He denied reexperiencing that event through nightmares or flashbacks. The diagnoses were recurrent major depression and alcohol abuse. In a November 1994 statement, R. Hilding, M.D., reported that he had intermittently treated the veteran since September 1988. Dr. Hilding indicated that the veteran was initially treated for major depression and dysthymic disorder and that eventually it was determined that he had PTSD. Dr. Hilding noted that the precipitating factor was the veteran's killing of his partner in service. When the veteran was evaluated by a VA social worker in March 1995, he reported that since he shot his best friend in service, he had been depressed and periodically been suicidal, made poor decisions, and at one point, was a polysubstance abuser. The Axis I diagnoses were chronic, delayed PTSD and dysthymia. The veteran had a hearing in April 1995 at the RO before a RO hearing officer. He testified that his in-service stressor was shooting his partner on guard duty. He admitted that he was not supposed to have a magazine in his pistol at the time of the shooting and should have observed safe firearm procedures. The representative argued that the veteran's actions did not constitute willful misconduct because willful misconduct required malice aforethought and because the veteran had been found guilty of involuntary manslaughter and granted clemency. April 1995 Transcript. In September 1995, the service department indicated that there was no line-of-duty determination in the veteran's service personnel records. The veteran had another hearing before an RO hearing officer in March 1997. He asserted that willful misconduct was not a question in his claim and that it was unfair that the question of willful misconduct was first raised at the May 1995 hearing without providing him prior notice. March 1997 Transcript. The veteran was afforded a VA examination in April 2002. His claims file was reviewed by the examiner. The veteran reported that he had shot a fellow serviceman. Following mental status evaluation, the examiner indicated that for purposes of a diagnosis of PTSD, the veteran had a traumatic event and noted that although the veteran was the shooter, PTSD could be induced by an actual or threatened death of self or others. The veteran was noted to meet the PTSD criteria for reexperiencing, arousal, duration, and impairment but he did not meet the PTSD criteria for avoidance. Specifically, he only had two of the seven criteria for avoidance whereas he needed to have at least three out of seven for a diagnosis of PTSD. The examiner noted that the veteran appeared to have some symptoms of PTSD, or "partial PTSD," and that there was evidence of a chronic mood disorder, most consistent with dysthymia. The Axis I diagnoses included dysthymic disorder and partial PTSD. Legal Criteria Willful Misconduct An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty unless such injury or disease was a result of the person's own willful misconduct. 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). 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 VA unless it patently inconsistent with the facts and the requirements of laws administered by VA. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). (During the pendency of the appeal, the legal terms malum in se and malum prohibitum were removed from the definition of willful misconduct because the definition was already clear and those Latin terms were unnecessary. Therefore, this change did not result in any substantive changes in the definition itself. See 61 Fed. Reg. 56,626, 56,627 (Nov. 4, 1996)). 38 U.S.C.A. § 105 establishes a presumption in favor of finding in the line of duty. In order to deny a claim based on a finding of willful misconduct, a preponderance of the evidence must support such a finding. Smith v. Derwinski, 2 Vet. App. 241, 244 (1992). Additionally, the element of knowledge of, or wanton and reckless disregard of, the probable consequences must be specifically addressed. Myore v. Brown, 9 Vet. App. 498, 503-04 (1996). Service Connection for Post-traumatic Stress Disorder Service connection may be established for a disability resulting from a personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in the line of duty and not the result of willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the condition noted during service is not shown to be chronic or the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The United States Court of Appeals for Veterans Claims ("Court") has established the following rules with regard to claims addressing the issues of chronicity and continuity of symptomatology. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Specifically, a lay person is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. Id. at 495-97. With regard to continuity of symptomatology, medical evidence is required to demonstrate a relationship between any present disability and the continuity of symptomatology unless such a relationship is one to which a lay person's observation is competent. Id. at 497. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Id. (38 C.F.R. § 3.304(f) was amended effective March 7, 2002, but only with regard to a PTSD claim based on an in- service personal assault. See 67 Fed. Reg. 10,330 (Mar. 7, 2002).) With respect to the psychiatric diagnostic criteria, the Court in Cohen v. Brown, 10 Vet. App. 128 (1997), indicated that VA adopted the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) in amending 38 C.F.R. §§ 4.125 and 4.126. In its decision, the Court took judicial notice of the effect of the shift in diagnostic criteria. Cohen, 10 Vet. App. at 141. The major effect is this: The criteria have change from an objective ("would evoke ... in almost anyone") standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. Id. Unlike the criteria in DSM-III-R, under DSM-IV, there is no longer the requirement that the stressor be "outside the range of usual human experience" and be "markedly distressing to almost anyone." Id. DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." Id. As noted in the concurring opinion in Cohen, the sufficiency of a stressor is now a clinical determination for the examining mental health professional. Id. at 153 (Nebeker, C.J., concurring). Analysis There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA of 2000). The law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supercedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). This law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA of 2000 is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. VCAA of 2000, Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA of 2000. See 66 Fed. Reg. at 45,630-32 (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The regulations pertaining to this claim merely implement the VCAA of 2000 and do not provide any rights other than those provided by the VCAA of 2000. See 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). Although the RO did not specifically review the veteran's claims under the VCAA of 2000 and the new regulations, the requirements of the VCAA of 2000 have been satisfied. Through the statement of the case, the supplemental statements of the case, the January 1998 Board remand, and a March 1998 letter, VA informed the veteran of the information and medical and lay evidence that was necessary to substantiate his claims, and his responsibility for providing information and evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the November 1995 supplemental statement of the case contains the definition of willful misconduct. In the January 1998 Board remand, the veteran was advised that VA would obtain his complete service personnel records and service department records pertaining to his court-martial, and the June 2002 supplemental statement of the case indicates that such records were obtained. In a March 1996 letter, the RO asked the veteran to identify any additional medical providers who evaluated or treated him for psychiatric problems and he was advised to complete release forms, which were provided, for any private medical records he wished VA to obtain. He was also advised that he could submit any additional probative evidence and provide further statements in support of his claim. The veteran did not respond to that correspondence. As stated below, the issue of whether the veteran's shooting of a fellow serviceman constituted willful misconduct is dispositive on the issue of service connection for PTSD. In light of the above, the veteran was notified of the information and evidence necessary to support a finding that such actions were not willful misconduct and was informed that VA would obtain the relevant evidence. See id. Concerning the hearing officer's duty to assist, for the same reasons as noted above with regard to the VCAA of 2000, the hearing officer's duty under 38 C.F.R. § 3.103(c)(2) has been satisfied. See Stuckey v. West, 13 Vet. App. 163 (1999); Costantino v. West, 12 Vet. App. 517 (1999). The RO obtained the veteran's service medical records, Army service personnel records, and records pertaining to his court-martial. With regard to VA medical records and any Social Security Administration (SSA) records, the veteran has only alleged one in-service stressor - the in- service shooting of a fellow serviceman - and, as noted below, the issue of whether such a shooting constituted willful misconduct is controlling on the issue of service connection for PTSD. Therefore, VA did not have to obtain any additional VA medical records or SSA records because records pertaining to a current diagnosis of PTSD are not relevant to the matter of whether the veteran's only in- service stressor constituted willful misconduct. For the same reason, VA did not have to obtain any additional private medical records regarding a current diagnosis of PTSD, and in any event, the veteran did not respond to the March 1999 letter requesting him to identify and authorize the release of any such records. With regard to a medical examination or opinion, the veteran was afforded two VA examinations, although for reasons stated below those examinations were not necessary. The January 1998 Board remand requested an examination by a panel of two board-certified psychiatrists, but the April 2002 VA examination was conducted by only one psychiatrist. However, in the remand the Board neglected to advise the RO that if it was determined that the veteran's only claimed in-service stressor (the shooting incident) was still found to constitute willful misconduct, the requested examination would not be necessary. Thus, affording an examination by one rather than two psychiatrists was harmless error. The RO has substantially complied with the directives of the January 1998 Board remand and adjudicating the veteran's claim was not frustrated by any failure of the RO to adhere to the Board's remand order. See Evans v. West, 12 Vet. App. 22, 31 (1998); Stegall v. West, 11 Vet. App. 268 (1998). Inasmuch as VA has made all reasonable efforts to notify and assist the veteran in the development of his claim, VA's duties have been fulfilled and the Board may proceed to decide the claim without prejudice to the veteran. See generally Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGPREC 16-92 (July 24, 1992). Willful Misconduct On February 10, 1964, the veteran placed a .45 caliber pistol in the mouth of J.L.D., pulled the trigger, and killed him. The veteran and his representative have argued that the shooting was an unintentional accident. Purporting to quote the supplemental statement of the case of June 20, 2002, the veteran wrote "organic diseases and disabilities which are a secondary result of an incident of misconduct are not to be considered willful misconduct." However, the veteran has misquoted the material in question, which specifically refers to organic diseases and disabilities that are "a secondary result of the chronic use of alcohol." Supplemental Statement of the Case of June 20, 2002, p. 4., para. 2. The use of alcohol does not come into play in this case. The basic facts of the case are that the veteran loaded his weapon on the evening of February 10, 1964 while on duty as a unit policeman/gate guard and about two hours after loading his weapon, engaged in horseplay with his buddy J.L.D., placed his pistol in J.L.D.'s mouth and pulled the trigger. The weapon fired and J.L.D. was killed. There is no indication that the veteran remembered his weapon was loaded when he shot J.L.D. or that he intended to injure or kill him, even though he had loaded the pistol no more than a few hours earlier. Thus, the act of placing the pistol in J.L.D.'s mouth and then pulling the trigger were neither unintentional nor accidental and it could be argued that the veteran should have recalled having loaded the pistol no more than a few hours earlier. In any event, this incident can not be equated to a weapon that accidentally discharges while being properly handled. The veteran's representative argued at the April 1995 hearing that the veteran's actions did not constitute willful misconduct because willful misconduct requires malice aforethought and because the veteran was found guilty of involuntary manslaughter and was granted clemency. In a February 1996 statement, the veteran noted that his sentence had been suspended and clemency granted, indicating that that he had completed his enlistment, was promoted three grades, received an honorable discharge, and was recommended for reenlistment. He suggested that these facts showed that the service department determined that he did not engage in misconduct and that his actions were in the line of duty. Regarding "malice aforethought," willful misconduct merely requires conscious wrongdoing or a known prohibited action. It does not require intent to harm someone. Negligent behavior resulting in someone being harmed can be conscious wrongdoing or a known prohibited action. See 38 C.F.R. § 3.1(n). With regard to a service department line-of-duty determination, such is generally made in the case of injury but it is made in respect to the injured person, J.L.D. in this case, not the veteran. Thus, it is not unusual that the veteran's service personnel records do not contain a line-of-duty determination and there is no evidence that the service department ever made a line- of-duty determination in respect to the veteran on which VA could be bound. See 38 C.F.R. § 3.1(m)-(n). In respect to the argument that involuntary manslaughter is not willful misconduct, the record shows that, with the advice of counsel, the veteran entered into a pre-trial agreement whereby, as agreed, he pled guilty to a charge of involuntary manslaughter - the unlawful killing of another human being by culpable negligence and without intent to kill or inflict great bodily harm. His plea was accepted and he was found guilty and sentenced. Although the sentence was corrected at the recommendation of the SJA, the correction was so that it would not exceed the sentence limitations of the pre-trial agreement. On June 4, 1964, a Board of Review at the United States Army Judiciary, Office of the Judge Advocate General found that the findings of guilty and sentence as approved by proper authority on April 1, 1964, were correct in law and fact and such findings were affirmed. While simple negligence is the absence of due care, culpable negligence is more than simple negligence. Culpable negligence is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of such act or omission, and is negligence showing a gross, reckless, wanton disregard for the safety of others. Accordingly, the veteran's unlawful killing of J.L.D. with culpable negligence and without intent to kill or inflict great bodily harm could be considered willful misconduct. See id. As for the suspension of the sentence and granting of clemency, clemency was granted by the convening authority in consideration of all positive and negative evidence. The granting of clemency went to the question of the sentence and did not alter the findings of guilt with regard to the underlying charge of involuntary manslaughter. Additionally, matters such as the veteran's completion of his enlistment, promotion, honorable discharge, and recommendation for reenlistment are not relevant to the question of whether his actions on February 10, 1964, constituted willful misconduct. The veteran's actions constitute conscious wrongdoing because he should not have put a gun in the mouth of another human being and pulled the trigger, even though he apparently thought the gun was unloaded. Although he did not intend to kill J.L.D., his actions of putting the gun in J.L.D.'s mouth and pulling the trigger were deliberate and intentional wrongdoing because these actions involved a firearm. At the April 1995 hearing, he admitted that he was not supposed to have a magazine in his pistol at the time of the shooting and should have observed safe firearm procedures. Given the fact that the weapon was a .45 caliber pistol, his actions showed a wanton or reckless disregard of the probable consequences of said actions. See id. Besides being conscious wrongdoing, these actions were also known prohibited actions. The veteran should not have loaded his weapon when J.L.D. did not return because there was no evidence of a commission of a serious crime. He had been repeatedly told by the NCO on duty about unnecessarily loading his weapon, and in his own statement given on February 11, 1964, he admitted that he was familiar with this policy. In other words, he committed a known prohibited action in loading his weapon in the first place, and he should have unloaded immediately when it was determined that J.L.D. was not in any danger. Additionally, the veteran should not have engaged in horseplay with his weapon. A copy of the SOP, which, according to the NCO on duty, the veteran should have read prior to joining the unit police, shows that he was not supposed to play with his weapon, remove it from the holster, and fire it unnecessarily, and such actions would be considered a violation of a standing order. Therefore, the veteran engaged in a known prohibited action by playing with his weapon, removing it from its holster, putting in J.L.D.'s mouth, and pulling the trigger. These actions showed a wanton or reckless disregard of the probable consequences of such actions. Additionally, since the SOP pertained to the use of firearms, violating the SOP was not a mere technical violation of police regulations or ordinances. See id. In short, the preponderance of the competent and probative evidence shows that the veteran's actions of putting a .45 caliber pistol, which should not have been loaded, into the mouth of J.L.D. and pulling the trigger, which resulted in J.L.D.'s death, constituted willful misconduct and were not in the line of duty. 38 U.S.C.A. §§ 105, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.102. Service Connection for PTSD Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n)(3). Direct service connection may be granted only when a disability was incurred in the line of duty and not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.301(a). In this case, while the veteran had mild depression in late February 1964 after the shooting, there were no complaints or relevant history on the December 1966 separation examination and the psychiatric evaluation was normal. A psychiatric disorder was shown again until many years after service. The report of the April 2002 VA examination does not contain a diagnosis of PTSD. The examiner indicated that the veteran did not meet the requirements for avoidance and that he only had "partial PTSD." However, other medical evidence reflects a diagnosis of PTSD. To the extent that the veteran even has PTSD, the question is whether the veteran's actions resulting in the shooting death of J.L.D. are the cause of his PTSD. The veteran's only in-service stressor is the shooting of J.L.D., which the April 2002 VA examiner noted was a traumatic event for purposes of a diagnosis of PTSD. In his November 1994 statement, Dr. Hilding noted that the veteran's PTSD was precipitated by the in-service shooting of his partner, and the other medical evidence showing a diagnosis of PTSD reflects a reporting of the shooting of J.L.D. as a stressor. There is no evidence that the PTSD is due to another stressor, much less another in-service stressor. Therefore, the preponderance of the competent and probative evidence reflects that the proximate cause of PTSD, if present, is the veteran's actions that resulted in the shooting death of J.L.D. Since the veteran's actions resulting in the shooting death of J.L.D. constituted willful misconduct, PTSD was not incurred or aggravated in the line of duty during the veteran's active service, and service connection for PTSD is not warranted. 38 U.S.C.A. §§ 105, 1110, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301(a). ORDER The veteran's actions that resulted in the death of another serviceman constituted willful misconduct and the appeal as to this matter is denied. Entitlement to service connection for PTSD is denied. JANE E. SHARP Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.