(a) General. (1) In order for suicide to constitute willful misconduct, the act of self-destruction must be intentional.
(2) A person of unsound mind is incapable of forming an intent (mens rea, or guilty mind, which is an essential element of crime or willful misconduct).
(3) It is a constant requirement for favorable action that the precipitating mental unsoundness be service connected.
(b) Evidence of mental condition. (1) Whether a person, at the time of suicide, was so unsound mentally that he or she did not realize the consequence of such an act, or was unable to resist such impulse is a question to be determined in each individual case, based on all available lay and medical evidence pertaining to his or her mental condition at the time of suicide.
(2) The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness.
(3) A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction.
(c) Evaluation of evidence. (1) Affirmative evidence is necessary to justify reversal of service department findings of mental unsoundness where Department of Veterans Affairs criteria do not otherwise warrant contrary findings.
(2) In all instances any reasonable doubt should be resolved favorably to support a finding of service connection (see § 3.102).
Cross Reference:Cause of death. See § 3.312.
[28 FR 183, Jan. 8, 1963, as amended at 54 FR 31951, Aug. 3, 1989; 55 FR 13530, Apr. 11, 1990]
Notes of Decisions
Cited in
15
cases (
1 in the last 5 years), 1974–2026 · leading case:
Zang v. Brown, 8 Vet. App. 246 (Vet. App. 1995).
Zang v. Brown, 8 Vet. App. 246 (Vet. App. 1995).
· cites it 8× “The Board also remanded for the RO to readjudicate the issue without any consideration or application of 38 C.F.R. § 3.302 , which it stated applied only in cases involving a claim for service connection.”
Sheets v. Derwinski, 2 Vet. App. 512 (Vet. App. 1992).
· cites it 7× “Application of 38 C.F.R. § 3.302 .and the Reasonable Doubt Doctrine.”
Elkins v. Brown, 8 Vet. App. 391 (Vet. App. 1995).
· cites it 5× “After oral argument, the Court ordered supplemental memoranda addressing 38 C.F.R. § 3.302 (1994), “[sjervice connection for mental unsoundness in suicide.”
DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008).
“DeLaRosa argues that the Veterans Court misinterpreted 38 C.F.R. § 3.302 , which explains circumstances under which suicide will be *1323 considered to have resulted from mental unsoundness rather than from “willful misconduct.”
Anthony Hunt v. R. James Nicholson, 20 Vet. App. 519 (Vet. App. 2006).
“Hunt mailed the appeal to the Board instead of the agency of original jurisdiction, under 38 C.F.R. § 3.302 (b) (2004), his appeal was not timely filed.”
Myore v. Brown, 9 Vet. App. 498 (Vet. App. 1996).
· cites it 4× “Second, she argues that, even if it were assumed that the veteran’s wound was self, inflicted while playing Russian roulette, the Board’s December 1993 decision failed to discuss 38 C.F.R. § 3.302 in relation to the circumstances of the veteran’s death.”
Wilson v. West, 11 Vet. App. 383 (Vet. App. 1998).
“38 C.F.R. § 3.302 (b)(2). The appellants were not notified of the July 1988 decision which found that the children’s father’s death was due to willful misconduct.”
Clark v. United States, 379 F. Supp. 1399 (N.D. Iowa 1974).
· cites it 3× “38 CFR § 3.302 (c)(2) (1973). The record from the VA discloses no actual suicidal tendencies before entrance into the armed services.”
Collins v. UNUM Life Ins. Co. of Am., 185 F. Supp. 3d 860 (E.D. Va. 2016).
“” 38 C.F.R. § 3.302 . According to the regulation, a suicide is willful misconduct if it is “intentional;” however, “a person of unsound mind is incapable of forming an intent (mens rea, or guilty mind, which is an essential element of crime or willful misconduct).”
190512-5439 (Board of Vet. App. 2019).
· cites it 2× “However, as the representative noted the act of suicide is only considered to have resulted from mental unsoundness if no reasonably adequate motive for suicide existed as shown by the evidence. Id. Here, we have no evidence.”
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treatment. Dots show Syfertize treatment of the citing case itself.