Revised August 9, 2024
X.iv.2.B.1.aEffect of a Homicide Determination on the Right to Benefits
The issue of homicide, or wrongful death, is a question of fact. Whether or not a claimant or beneficiary wrongfully and intentionally caused the death of a Veteran or another beneficiary affects the right of a claimant to Department of Veterans Affairs (VA) benefits.Important: Even if VA makes a favorable determination about a claimant’s involvement in the death of a Veteran or other beneficiary, incarceration of the claimant may affect payment of benefits.References: For more information on
- the prohibition of benefits due to wrongful death, see 38 CFR 3.11, and
- adjustment of benefits due to incarceration, see M21-1, Part VI, Subpart iii, 1.A.
X.iv.2.B.1.bResponsibility for Making a Homicide Determination
The development activity is responsible for making a homicide determination. A homicide determination requires an administrative decision formatted in accordance with the guidance in M21-1, Part X, Subpart v, 1.C.2.
X.iv.2.B.1.cParticipation in Wrongful and Intentional Killing
Do not pay benefits to a claimant if it is an established fact that the claimant wrongfully and intentionally
- took the life of a Veteran or beneficiary
- encouraged or induced another to take the life of a Veteran or another beneficiary
- participated as an accomplice in the homicide
- assisted in the planning or preparation leading to the homicide, or
- otherwise aided and abetted the person causing the death.
For adjudicatory purposes, a wrongful and intentional killing is one in which the claimant or beneficiary caused the death of the Veteran or another beneficiary without justification or excuse.Justification or excuse may be found if it is established that the death was
- the result of
- an accident, or
- self-defense, or
- committed while the claimant was insane.
Reference : For more information on the effect of insanity on an administrative decision, see M21-1, Part X, Subpart iv, 2.A.
X.iv.2.B.1.dLanguage for Denial Letters to Claimants Implicated in the Homicide of the Veteran
Avoid any reference or charge of guilt or implication in the homicidal death of the Veteran in the denial letter. Use the following language:Based on the available evidence, we find the Veteran’s death was incurred under circumstances that prevent payment of VA benefits to you based on that death.
2Developing for Evidence in the Death of a Beneficiary by Homicide
This topic contains information on development when a claim is received and death of a beneficiary is a homicide, including
- determining if a claimant was implicated in the death of a beneficiary
- obtaining evidence regarding homicide
- correspondence related to homicide
- handling evidence or information connecting the claimant with the homicide, and
- obtaining information from recorded testimony related to homicide.
Revised November 14, 2011
X.iv.2.B.2.aDetermining if a Claimant Was Implicated in the Death of a Beneficiary
If the available evidence indicates that the death of the Veteran or a beneficiary is the result of a homicide, determine whether or not the claimant was implicated in the death before authorizing payment of survivors benefits.Important: Do not develop for further evidence if it can be determined by inquiry to the local sheriff or police that the claimant was not or could not have been implicated in the homicide. This may be true even if the person or persons responsible for the death are unknown.
X.iv.2.B.2.bObtaining Evidence Regarding Homicide
Typically, if additional relevant evidence is required, obtain it through correspondence with any of the following sources:
- police
- sheriff
- medical examiner
- prosecuting attorney
- clerk of the court, or
- other persons having knowledge of the circumstances.
If the information cannot be obtained from these sources, request a field examination to obtain the necessary evidence.Reference: For more information on requesting field examinations, see M21-1, Part X, Subpart v, 1.E.
X.iv.2.B.2.cCorrespondence Related to Homicide
Carefully word any correspondence to the claimant or persons outside VA when requesting information in connection with death by homicide. Ensure there is no inference that VA suspects or implies that the claimant or any other particular person may be guilty or implicated in the homicide.
X.iv.2.B.2.dHandling Evidence or Information Connecting the Claimant With the Homicide
If there is evidence or information connecting the claimant with the homicide, then develop by field examination to obtain all the facts.Important: Do not request copies of grand jury records under any circumstances, either by letter or field examination.Reference: For more information on requesting field examinations, see M21-1, Part X, Subpart v, 1.E.
X.iv.2.B.2.eObtaining Information From Recorded Testimony Related to Homicide
It may be necessary to request that the field examiner review the court records to obtain pertinent information from recorded testimony at a trial as well as names of witnesses.Request transcripts of recorded testimony only in extreme cases in which the question cannot otherwise be resolved.Reference: For more information on requesting field examinations, see M21-1, Part X, Subpart v, 1.E.
3Facts to Consider in a Wrongful and Intentional Killing
This topic contains information on the facts to consider in a wrongful and intentional killing, including
- death as a result of
- an accident, and
- self-defense
- homicide committed while insane
- determining when to request additional evidence regarding the claimant’s sanity
- evidence showing the claimant is insane, and
- submitting the case for rating determination on the claimant's insanity.
Revised February 19, 2019
X.iv.2.B.3.aDeath as a Result of an Accident
A death may be considered accidental if the chain of circumstances resulting in the fatality was not set in motion for the purpose of causing death.
X.iv.2.B.3.bDeath as a Result of Self-Defense
It may be found that the claimant acted in self-defense and that the death occurred as a result of the claimant’s self-protective action. Consider the following circumstances as possible evidence of self-defense:
- the claimant suffered an immediate fear of
- loss of life
- incest, or
- other serious emotional or bodily harm by reason of threatening acts of the deceased
- there was no logical avenue of escape or retreat for the claimant, and
- the deceased was in a position and had the apparent means to commit the crime.
Important: Examine and weigh all facts and circumstances surrounding the killing, regardless of the action taken by civil authorities, to determine if the claimant’s allegation of self-defense is substantiated by the information and evidence available.
X.iv.2.B.3.cHomicide Committed While Insane
If the claimant or beneficiary caused the death of the Veteran or another beneficiary, and it is established that such act was committed while insane, the killing will not bar the claimant from receiving survivors benefits.
X.iv.2.B.3.dDetermining When to Request Additional Evidence Regarding the Claimant’s Sanity
Use the table below to determine when to request additional evidence regarding the claimant’s sanity.
| If … | Then … |
|---|---|
the question of the claimant’s sanity at the time of the killing was determined in a judicial proceeding connected with the trial on the criminal charge | accept the determination without further development. |
a judicial determination of insanity was made at or before a trial without any determination as to the sanity of the claimant at the time of the killing | obtain all the evidence and information available with respect to the
|
Note: Determine the claimant’s sanity at the time of the killing based on consideration of all available evidence.
X.iv.2.B.3.eEvidence Showing the Claimant Is Insane
Consider the claimant insane at the time of commission of the act if the claimant was laboring under such a defect of reason from disease of mind or mental deficiency that they
- did not know the nature and consequence of the act, or
- knew the nature and consequences of the act but did not perceive the act as wrong.
Reference: For more information on the definition of insanity, see 38 CFR 3.354.
X.iv.2.B.3.fSubmitting the Case for Rating Determination on the Claimant’s Sanity
If there is a question as to the claimant’s sanity at the time of the killing, submit the case to the rating activity after development has been completed.Unless reversed on legacy appeal or under decision review, the determination of the rating activity is conclusive on the question of the claimant’s sanity or insanity at the time of the killing.Reference: For more information on insanity determinations, see M21-1, Part X, Subpart iv, 2.A.
4Considering Judicial Proceedings in Homicide Determinations
This topic contains information on the effect of judicial proceedings on a VA determination, including
- rules of evidence in criminal versus civil cases
- VA’s authority to bar benefits based on evidence of homicide, and
- when to develop for additional evidence regarding homicide.
Revised November 14, 2011
X.iv.2.B.4.aRules of Evidence in Criminal Versus Civil Cases
The rules of evidence, practice, and procedure in a criminal proceeding differ from those of a civil action in the following manner:
- in a criminal proceeding, guilt must be proved beyond a reasonable doubt, but
- in a civil action, the issue is determinable upon a preponderance of evidence.
Therefore, adjudication in a civil action is not determinative as to the criminal
proceeding.
X.iv.2.B.4.bVA’s Authority to Bar Benefits Based on Evidence of Homicide
The guilt or innocence of a claimant accused of feloniously or intentionally causing the death of the Veteran or another beneficiary is a question of fact that affects the rights of the claimant.VA has the authority to
- determine guilt or innocence based on the preponderance of evidence that the accused is guilty in any given case, and
- bar the claimant’s right to benefits, if VA finds the claimant guilty, independent of any verdict in a criminal court.
X.iv.2.B.4.cWhen to Develop for Additional Evidence Regarding Homicide
Use the table below to determine when to develop for additional evidence and make a determination regarding homicide.
| If the claimant … | Then … |
|---|---|
is convicted | |
| develop for the facts surrounding the death to make a determination, regardless of the action of a
|
Reference: For more information on the prohibition of benefits due to homicide, see 38 CFR 3.11.
5Handling Effects of Adverse Determinations
This topic contains information on the effect of adverse determinations on the various classes of claimants or beneficiaries, including
- determining the effect of the homicide of a Veteran, and
- effect of a homicide
- of a beneficiary, and
- on entitlement to accrued amounts.
Revised November 14, 2011
X.iv.2.B.5.aDetermining the Effect of the Homicide of a Veteran
Use the table below to determine the effect of wrongful and intentional killing of a Veteran.
| If the Veteran’s death is wrongfully and intentionally caused by … | Then … |
|---|---|
a surviving spouse |
|
a parent | |
the child, and the
| the surviving spouse may be awarded additional survivors benefits on account of the child if the surviving spouse is entitled to benefits and retains custody of the child. Note: The question of whether or not payment to the child might be barred because the child caused the death of the Veteran is immaterial when the child is in the custody of the surviving spouse. Under such circumstances, it is the surviving spouse who is entitled and the child has no right or entitlement to any part of such benefits.
|
the child, and the surviving spouse is not entitled to benefits |
|
X.iv.2.B.5.bEffect of a Homicide of a Beneficiary
The rule that a wrongdoer may not profit by a wrongful act applies equally to a beneficiary of Survivors Pension, Dependency and Indemnity Compensation (DIC), and accrued benefits who wrongfully and intentionally caused the death of another beneficiary.The beneficiary’s entitlement as a dependent of the deceased Veteran is not affected, but the dependent cannot receive any increase that is otherwise payable as the result of the other beneficiary’s death.The table below describes some example situations and their respective result and action.
| Example Situation | Result and Action |
|---|---|
The Veteran’s child is receiving survivors benefits and wrongfully and intentionally causes the death of another child in receipt of survivors benefits on the same award. | The child who caused the death cannot profit from the other child’s death.Do not pay any increase that would have been payable because of the discontinuance of benefit payments to, or on account of, the deceased child. |
The parent wrongfully and intentionally caused the death of the other parent. | The parent who caused the death is precluded from
|
X.iv.2.B.5.cEffect of Homicide on Entitlement to Accrued Amounts
The effect of adverse determinations stated in M21-1, Part X, Subpart iv, 2.B.5.a and b for the various classes of beneficiaries apply equally to claimants for accrued amounts and lump sums payable under 38 U.S.C. 5121 and 38 U.S.C. 5502(d).Since payment of accrued amounts is governed by a succession of preferred beneficiaries, the wrongful and intentional killing of a preferred beneficiary by one in the
- next lower order of preference bars any payment of the accrued amount to the wrongdoer, or
- same class of beneficiaries bars the payment of an increased share.
6Effect of an Insurance Interpleader on Claims for Other Benefits in Cases Involving Homicide
This topic contains information on the effect of an insurance interpleader on claims for other benefits, including
- deferring final homicide determination when insurance benefits are involved, and
- considering the conclusions of law of the court.
Revised November 14, 2011
X.iv.2.B.6.aDeferring Final Homicide Determination When Insurance Benefits Are Involved
For Survivors Pension, DIC, or accrued amount claims, defer a final homicide determination pending submission of the case to the Office of General Counsel (OGC), if
- the claimant is also a beneficiary of insurance, and
- the evidence indicates the claimant may have participated in the killing of the person for whose death both VA and insurance benefits are payable.
OGC determines the propriety of filing a bill of interpleader for insurance purposes.Reference: For more information on the effect of an insurance interpleader on claims for other benefits, see M21-1, Part VI, Subpart iii, 3.C.5.
X.iv.2.B.6.bConsidering the Conclusions of Law of the Court
It is the policy of VA to give careful consideration to the findings of fact and conclusions of law of the court in determining the rights of the claimant to the benefit claimed.However, the decisions of the VA Secretary are final on matters of compensation, pension, and DIC.
End of Part X, Subpart iv, Chapter 2, Section B