“[I]n all cases section 105 establishes a presumption in favor of a finding of line of duty. If the BVA finds that an exception does apply (in this case, willful misconduct), and denies the claim solely on the basis of such exception, the Board must establish that denial of the claim is justified by a preponderance of the evidence.”
How later courts described this case
- “[I]n all cases section 105 establishes a presumption in favor of a finding of line of duty. If the BVA finds that an exception does apply (in this case, willful misconduct), and denies the claim solely on the basis of such exception, the Board must establish that denial of the claim is justified by a preponderance of the evidence.”
- where statute (38 U.S.C. § 105) establishes a presumption in the claimant’s favor, a preponderance of the evidence must be offered to show that an exception applies
Written by the judges who cited it.
The opinion
KRAMER, Associate Judge,
concurring:
While I concur with the majority’s decision to remand the ease to the Board of Veterans Appeals, I write separately to emphasize that despite the lack of evidence in this case regarding what occurred at the precise moment of the accident, the totality of the circumstances surrounding the accident are sufficient to justify a finding of willful misconduct. The record shows that Smith chose to take his motorcycle ride after an evening of drinking, R. 23, 25-29, and while there were no conclusive blood alcohol readings, the emergency room doctor who treated Jeffery Coley reported detecting a “strong odor of alcohol” on Coley’s breath. R. 39. In addition, the Department of the Navy Traffic Accident Report listed both alcohol and “excessive [speed] for conditions” as factors contributing to the accident, R. at 9, and the appellant stated that immediately prior to Smith’s fateful ride, she tried to persuade *247 him not to go. R. at 25. Finally, Coley stated that Smith did a number of “wheelies” prior to the accident, and was driving “fast, very fast.” R. at 38. Cf. Lidy v. Film Transit, Inc., 796 F.2d 103 (5th Cir.1986) (circumstances surrounding accident, such as evidence of speeding and the amount of care taken to avoid collision, can be used to determine driver’s level of culpability); Sharp v. Egler, 658 F.2d 480 (7th Cir.1981) (evidence that a driver was speeding and struck a stationary object after driving off road, combined with driver’s admission of drinking, was sufficient to create reasonable finding of wantonness); McDaniel v. Frye, 536 F.2d 625 (5th Cir.1976) (knowledge requirement of wantonness need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference).