remanding 8 the appellant's claim to the Board when it failed to address three physicians' statements, made several years after service, that the extent of the appellant's current disability was indicative of a long- standing infection and in-service exposure to disease
How later courts described this case
- remanding 8 the appellant's claim to the Board when it failed to address three physicians' statements, made several years after service, that the extent of the appellant's current disability was indicative of a long- standing infection and in-service exposure to disease
- physicians’ statements, several years postservice, that “extent of the veteran’s current condition is indicative of exposure” to disease in service could provide basis for service connection
Written by the judges who cited it.
The opinion
MANKIN, Judge,
concurring:
This case presents a matter of considerable sensitivity in today’s society. I recognize that the burden on the Government and this Court is great to insure that constitutional and legal principles are followed scrupulously. However, I question whether those principles were followed in this case by the Government.
In its adjudication process, the VA has determined that it will not consider the specific residuals of “HIV (Human Immunodeficiency Virus) related illness ... to be the result of willful misconduct” without specifying the probable method of contracting the illness. DEPARTMENT OF VETERANS AFFAIRS, Department of VeteRans Benefits Manual; Adjudication PROCEDURE, Part VI, § 7.29 (March 17, 1992) (M21-1 Manual). I find the VA M21-1 Manual troubling because it condones conduct which the Congress has declared to be illegal. For example, Congress has clearly stated that homosexual acts of sodomy are proscribed conduct within the military. 10 U.S.C.A. §§ 1162-68 , 1169-70, 1172-73 (West 1983); 10 U.S.C.A. § 926 (West 1983); United States v. Johnson, 27 M.J. 798 (Air Force Ct.Mil.Rev.1988), aff'd, 30 M.J. 53 (U.S.Ct.Mil.App.1990), cert. denied, 498 U.S. 919 , 111 S.Ct. 294 , 112 L.Ed.2d 248 (1990). The VA may not condone activity through its regulations which the Congress has proscribed. United States v. Larionoff, 431 U.S. 864, 873 , 97 S.Ct. 2150, 2156 , 53 L.Ed.2d 48 (1977).
The issue of the appellant’s conduct was not addressed below by the VA or the Board, though the evidence before both the VA and the Board seems to indicate that the appellant’s illness was contracted through statutorily proscribed means rather than through, for example, a dirty needle or tainted blood transfusion. Yet, by the VA’s own regulations, the appellant’s conduct should have been considered. 38 U.S.C.A. § 101 (16) (West 1991). For a disability to be service connected, it must have been incurred in the line of duty. Id. A disability incurred during active military service will be considered to have been incurred in the line of duty unless the disability was the result of the claimant’s own willful misconduct, 38 U.S.C.A. § 105 (a) (West 1991); 38 C.F.R. §§ 3.1 (m), 3.301(a)-(b) (1993), which is defined as “an act involving ... [a] known prohibited action,” Smith v. Derwinski, 2 Vet.App. 241, 243-44 (1992). Accordingly, until the foregoing threshold issue is addressed, the majority’s detailed legal discussion is premature. Therefore, for the foregoing reasons, I concur in the result only.