Citation Nr: 18151039 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-46 474 DATE: November 19, 2018 REMANDED Entitlement to death and indemnity compensation (DIC) benefits based on the service member’s in-service death, is remanded. REASONS FOR REMAND The appellant is the mother of a deceased service member (and conservator of his minor children) who served on active duty from September 1994 until he died in April 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 administrative decision, which determined that the service member’s death was not incurred in the line of duty, but was due to willful misconduct. Entitlement to DIC benefits based on the service member’s death in service. The service member and his spouse both died in an April 2014 (during his service). They died due to blunt force injuries sustained in a motorcycle accident, at the scene of the accident; autopsies were not performed. An April 2014 United States Marine Corps (U.S.M.C.) Line of Duty / Misconduct Investigation Report concluded that the service member’s death occurred in the line of duty and was not due to his own misconduct. Three subsequent U.S.M.C. endorsements of the Report are of record. A May 2014 U.S.M.C. Report of Casualty notes that the service member died on Active Duty. A June 2015 Department of Veterans Affairs (VA) Administrative Decision found that the service member’s death was not incurred in the line of duty, but was due to willful misconduct. The decision contains some apparent inconsistencies, as it initially (apparently in error) notes that the U.S.M.C. Report found the service member was “Not in Line of Duty – Due to Own Misconduct”, but subsequently acknowledges that the U.S.M.C. found that his death was “In the Line of Duty and not due to his own misconduct”; the RO then found such finding was not consistent with VA regulations (and that the record supports a finding of “Not in Line of Duty – Due to Own Misconduct”). [Notably, a service department finding that death occurred in line of duty will be binding [emphasis added] on VA unless it is patently inconsistent [emphasis added] with the facts and the requirements of laws administered by the Department of Veterans Affairs. 38 C.F.R. § 3.1(n).] The Board finds that further development of the record is needed for proper adjudication of the claim. The record does not contain the service member’s personnel records, including any DD Form 214. [Service treatment records (STRs) other than dental records are also not associated with the record.] The record contains a VETSNET Award document that reflects the character of the service member’s discharge was “Dishonorable for VA Purposes” (which would be a bar to a claim for VA death benefits); however, this appears inconsistent with the findings of the April 2014 U.S.M.C. Report. Accordingly, a remand to obtain service personnel records, including specifically any DD Form 214, and to determine the character of his discharge is necessary. The Board notes that other potentially relevant records pertaining to the fatal accident remain outstanding. Although an Ohio State Highway Patrol Traffic Crash Report is associated to the record, records/reports from the Lorain County Coroner’s office (including a toxicology report cited in the April 2014 U.S.M.C. Report) are not associated with the record. Additionally, while the April 2014 U.S.M.C. Report notes that there were 15 enclosures, only 4 are associated with the record. The additional supporting records noted should be obtained. The matter is REMANDED for the following: 1. Arrange for exhaustive development to obtain for the record any outstanding STRs and all service personnel records, including specifically any DD Form 214 and a complete copy of the April 2014 U.S.M.C. Line of Duty Misconduct Investigation Report (with all enclosures). If any records identified are unavailable, the scope of the search must be documented and a formal finding of unavailability must be made. 2. Obtain (with authorization by the appellant, as necessary) the report of the Lorain County Coroner and all evidence relied thereupon (including any toxicology reports). 3. Thereafter, review the evidence added to the file and make an administrative determination regarding the character of the service member’s military discharge. If the determination remains that the death of the serviceman was not in line of duty, but was due to willful misconduct, identify the factors that render the U.S.M.C. line of duty finding patently inconsistent with the facts and governing law, so as to render that finding nonbinding. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel