## Facts

- Charles O. Forshey served on active duty in the U.S. Navy from 1975 until his death on August 19, 1990, from injuries sustained in a motorcycle accident.
- A Navy investigation reported daylight and good weather conditions, no evidence of mechanical failure or other physical cause, and no finding of excessive speed.
- Toxicology testing showed a blood-alcohol level above the Navy’s presumptive intoxication threshold; the investigation concluded alcohol was a contributing factor.
- Rezi P. Forshey, the veteran’s widow, applied for dependency and indemnity compensation (DIC) on the theory that the death was service-connected.
- A VA Regional Office denied the claim, finding the veteran’s intoxication was willful misconduct that proximately caused death.
- The Board of Veterans’ Appeals affirmed, relying on evidence of intoxication and the lack of an identified alternative cause to find, by a preponderance of the evidence, that the death was due to willful misconduct and not incurred in line of duty.

## Issues

1. Whether the Board properly found that the 38 U.S.C. § 105(a) presumption that death was incurred in line of duty was rebutted by evidence of intoxication and related causation, establishing willful misconduct.
2. Whether the Board could weigh the absence of evidence of an alternative cause of the accident as “negative evidence” against the claim.

## Decision

- The Court of Appeals for Veterans Claims affirmed the Board’s denial of DIC.
- The court held the Board did not clearly err in finding the line-of-duty presumption rebutted and the death attributable to willful misconduct due to intoxication.
- The court approved the Board’s use of the absence of evidence of another cause, together with affirmative evidence of intoxication, as “negative evidence” weighing against service connection.

## Legal Principles

- DIC is payable to a surviving spouse when a veteran’s death is service-connected. (38 U.S.C. § 1310)
- For active-duty death or injury, § 105(a) creates a presumption that the event was incurred in line of duty unless it resulted from the veteran’s willful misconduct or alcohol/drug abuse. (38 U.S.C. § 105(a))
- Alcohol use is not willful misconduct by itself, but intoxication that “proximately and immediately” results in death may constitute willful misconduct. (38 C.F.R. § 3.301(c)(2))
- On judicial review, the Board’s factual findings are reviewed under the “clearly erroneous” standard; if the Board’s view has a plausible basis in the record, the court will not reweigh evidence. (38 U.S.C. § 7261(a)(4))
- In evaluating evidence, the absence of evidence of a claimed fact or alternate causal explanation may be treated as “negative evidence” tending to disprove the claim.

## Conclusion

The court upheld the denial of survivor benefits by concluding that the Board reasonably found intoxication to be willful misconduct that caused the veteran’s fatal accident and that the Board could treat the lack of evidence of any other cause as probative “negative evidence” against the claim.


Forshey v. West, 12 Vet. App. 71 (1998)