What this means
m21-1:X.iv.2.B explains considering eligibility when homicide is involved. In plain terms, the official guidance says the issue of homicide, or wrongful death, is a question of fact. Whether or not a veteran or claimant or beneficiary wrongfully and intentionally caused the death of a Veteran or another beneficiary affects the right of a veteran or claimant to VA benefits. It also addresses carefully word any correspondence to the veteran or claimant or persons outside VA when requesting information in connection with death by homicide.
How this may help with a claim
Use m21-1:X.iv.2.B to audit how VA handled considering eligibility when homicide is involved. Start with the decision date, the issue being reviewed, and the evidence VA was allowed to consider, then compare the record with this rule: The issue of homicide, or wrongful death, is a question of fact. Whether or not a veteran or claimant or beneficiary wrongfully and intentionally caused the death of a Veteran or another beneficiary affects the right of a veteran or claimant to VA benefits. Carefully word any correspondence to the veteran or claimant or persons outside VA when requesting information in connection with death by homicide. Cite the exact document and page when raising a factual or procedural error, and use the review rights in the actual notice for any deadline.
What to review in your file
- Check the file against this official condition: Even if VA makes a favorable determination about a veteran or claimant’s involvement in the death of a Veteran or other beneficiary, incarceration of the veteran or claimant may affect payment of benefits.
- Confirm that the record or notice addresses this source point: Do not pay benefits to a veteran or claimant if it is an established fact that the veteran or claimant wrongfully and intentionally
- Document how this stated step or exception applies: Justification or excuse may be found if it is established that the death was
Important limits
m21-1:X.iv.2.B explains VA guidance for considering eligibility when homicide is involved; it does not guarantee an award or replace the statutes, regulations, binding decisions, and review instructions that control an individual claim. Conditions and exceptions still matter, including this source point: The issue of homicide, or wrongful death, is a question of fact. Whether or not a veteran or claimant or beneficiary wrongfully and intentionally caused the death of a Veteran or another beneficiary affects the right of a veteran or claimant to VA benefits. The rules of evidence, practice, and procedure in a criminal proceeding differ from those of a civil action in the following manner:
Search terms when useful
Phrases that may help when searching your claim file or this library.
- Considering Eligibility When Homicide Is Involved
- m21-1:X.iv.2.B
- Considering Eligibility When
- Homicide Involved
- Cases Involving Homicide
- effect homicide determination right
- responsibility making homicide determination
- participation wrongful intentional killing
Original VA guidance
The official VA text of this section
Overview
In This Section
This section contains the following topics:
Scroll sideways to see the full table.
| Topic | Topic Name |
|---|---|
| 1 | General Information on Cases Involving a Homicide |
| 2 | Developing for Evidence in the Death of a Beneficiary by Homicide |
| 3 | Facts to Consider in a Wrongful and Intentional Killing |
| 4 | Considering Judicial Proceedings in Homicide Determinations |
| 5 | Handling Effects of Adverse Determinations |
| 6 | Effect of an Insurance Interpleader on Claims for Other Benefits in Cases Involving Homicide |
1. General Information on Cases Involving a Homicide
Introduction
This topic contains general information on handling cases involving a homicide, including
- effect of a homicide determination on the right to benefits
- responsibility for making a homicide determination
- participation in wrongful and intentional killing, and
- language for denial letters to claimants implicated in the homicide of a Veteran.
Change Date
August 9, 2024
X.iv.2.B.1.a. Effect 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.b. Responsibility 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.c. Participation 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.d. Language 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.
2. Developing for Evidence in the Death of a Beneficiary by Homicide
Introduction
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.
Change Date
November 14, 2011
X.iv.2.B.2.a. Determining 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.b. Obtaining 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.c. Correspondence 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.d. Handling 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.e. Obtaining 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.
3. Facts to Consider in a Wrongful and Intentional Killing
Introduction
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.
Change Date
February 19, 2019
X.iv.2.B.3.a. Death 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.b. Death 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.c. Homicide 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.d. Determining 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.
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| 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 circumstances surrounding the killing, and mental condition of the claimant at the time of the killing. Note: Determine the claimant’s sanity at the time of the killing based on consideration of all available evidence. |
X.iv.2.B.3.e. Evidence 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.f. Submitting 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.
4. Considering Judicial Proceedings in Homicide Determinations
Introduction
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.
Change Date
November 14, 2011
X.iv.2.B.4.a. Rules 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.b. VA’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.c. When 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.
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| If the claimant … | Then … |
|---|---|
| is convicted | do not make any further effort to develop the case, and accept the verdict of the court to bar entitlement to survivors benefits. |
| is acquitted or a conviction in a lower court is reversed on appeal has not yet been brought to trial, or is suspected of homicide, but was never brought to trial | develop for the facts surrounding the death to make a determination, regardless of the action of a grand jury medical examiner prosecuting attorney, or law enforcement agency. |
Reference: For more information on the prohibition of benefits due to homicide, see 38 CFR 3.11.
5. Handling Effects of Adverse Determinations
Introduction
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.
Change Date
November 14, 2011
X.iv.2.B.5.a. Determining the Effect of the Homicide of a Veteran
Use the table below to determine the effect of wrongful and intentional killing of a Veteran.
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| If the Veteran’s death is wrongfully and intentionally caused by … | Then … |
|---|---|
| a surviving spouse | deny the claim, and make any award of survivors benefits to the Veteran’s children in an amount which would have been payable to them had they been the sole original beneficiaries. |
| a parent | deny that parent’s claim, and pay the other parent, if any, the amount which would have been payable had that parent been the sole original beneficiary. |
| the child, and the surviving spouse is entitled to benefits, and child is in the custody of the surviving spouse | 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 entitled to benefits, and the child is not in the surviving spouse’s actual or constructive custody | pay the surviving spouse the amount which would have been payable if that child did not exist, and determine the rates payable in awards to other children entitled to an apportioned share as though this child did not exist. |
| the child, and the surviving spouse is not entitled to benefits | deny the claim, and increase the rates for other surviving children, if any, as though the child who did the wrongful act did not exist. |
X.iv.2.B.5.b. Effect 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.
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| 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 receiving an increase in or DIC as a sole surviving parent, or receiving the rate as a sole surviving parent. |
X.iv.2.B.5.c. Effect 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.
6. Effect of an Insurance Interpleader on Claims for Other Benefits in Cases Involving Homicide
Introduction
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.
Change Date
November 14, 2011
X.iv.2.B.6.a. Deferring 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.b. Considering 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.