Thomas S. Carter v. Denis McDonough, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
THOMAS S. CARTER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2077
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-7598, Judge Michael P. Allen.
______________________
Decided: August 29, 2022
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
MATTHEW J UDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY , L OREN MISHA P REHEIM ; CHRISTOPHER O.
ADELOYE, Y. K EN L EE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Case: 21-2077 Document: 35 Page: 1 Filed: 08/29/2022

-- 1 of 8 --

CARTER v. MCDONOUGH 2
Before M OORE, Chief Judge, P ROST and HUGHES , Circuit
Judges.
HUGHES , Circuit Judge.
Thomas S. Carter appeals from a decision of the United
States Court of Appeals for Veterans Claims affirming a
Board of Veterans’ Appeals decision denying Mr. Carter
service connection for a head injury. Because the Veterans
Court did not commit legal error in concluding that
Mr. Carter’s injury was the result of his own willful mis-
conduct and is therefore ineligible for service connection,
we affirm.
I
Mr. Carter served on active duty in the U.S. Marine
Corps from 1979 until 1980. While in service, he was in-
volved in an incident with military police (MP), who iden-
tified him as an individual who had damaged a government
vehicle. According to the police report, Mr. Carter became
combative during his apprehension and struck one of the
MPs, after which point a different MP struck Mr. Carter in
the head with his night stick. It is undisputed that this in-
teraction resulted in an in-service head injury to
Mr. Carter, and that Mr. Carter currently has residuals of
a traumatic brain injury due to the incident.
In 1981, Mr. Carter filed his first claim with Veterans
Affairs seeking benefits for his head injury. The VA re-
gional office denied his claim, explaining that under 38
C.F.R. § 3.301(a), service connection may be granted only
when a disability was incurred or aggravated in the line of
duty “and not the result of the veteran’s own willful mis-
conduct.” J.A. 21. The regional office concluded that, be-
cause Mr. Carter “sustained his injuries while forcibly
resisting arrest,” his action “was the proximate cause of his
injuries,” and therefore his injuries “[were] the result of
[his] own willful misconduct” under the definition of willful
Case: 21-2077 Document: 35 Page: 2 Filed: 08/29/2022

-- 2 of 8 --

CARTER v. MCDONOUGH 3
misconduct in 38 C.F.R. § 3.1(n). J.A. 22. Mr. Carter did
not appeal, and the decision became final.
Mr. Carter filed a second claim seeking benefits for his
traumatic brain injury in November 2009. The regional of-
fice denied the claim, but the Board of Veterans’ Appeals
reopened the matter in November 2014 and remanded it
back to the regional office for further development. After
the regional office completed additional fact finding, the
Board determined that the only issue in dispute was
whether Mr. Carter’s in-service injury was the result of his
own willful misconduct. If so, service connection could not
be granted under 38 U.S.C. § 105(a). The Board noted the
requirements of 38 C.F.R. § 3.1(n): that willful misconduct
“involves deliberate or intentional wrongdoing with
knowledge of or wanton and reckless disregard of its prob-
able consequences” and “will not be determinative unless it
is the proximate cause of injury, disease or death.” J.A. 25
(citing 38 C.F.R. § 3.1(n)(1), (n)(3)). The Board ultimately
concluded that Mr. Carter’s combative behavior during his
arrest “represent[ed] deliberate or intentional wrongdoing
on the part of [Mr. Carter] and reckless disregard of its
probable consequences,” and that the MP’s use of force in
response “reasonably f[ell] within the realm of ‘probable
consequences.’” J.A. 27. It thus denied Mr. Carter’s claims
because his injury was the result of his own willful miscon-
duct.
Mr. Carter appealed to the Veterans Court, which af-
firmed. Carter v. McDonough, No. 19-7598, 2021 WL
954825, at *4 (Vet. App. Mar. 15, 2021) (Veterans Court De-
cision). The Veterans Court concluded that the Board had
applied the correct legal standard in determining that
Mr. Carter’s head injury was the result of his own willful
misconduct, and that its factual determinations were not
clearly erroneous. Id. at *3–4. Mr. Carter appeals.
Case: 21-2077 Document: 35 Page: 3 Filed: 08/29/2022

-- 3 of 8 --

CARTER v. MCDONOUGH 4
II
Mr. Carter argues that the Veterans Court implicitly
misinterpreted the legal standard for “willful misconduct”
in 38 U.S.C. §§ 105(a) and 1131. Under 38 U.S.C. § 7292(a)
and (c), we have jurisdiction to review the Veterans Court’s
interpretation of those statutes. We review statutory and
regulatory interpretations of the Veterans Court de novo.
Gazelle v. Shulkin, 868 F.3d 1006, 1009 (Fed. Cir. 2017).
In Mr. Carter’s view, the phrase “result of the veteran’s
own willful misconduct,” as used in §§ 105(a) and 1131,
should not be interpreted to “permit an injury resulting
from the conduct of another person to be imputed upon the
veteran no matter what the veteran’s conduct or actions.”
Appellant’s Br. 6. He asserts that his injury was not due to
his own willful misconduct but was the result of another
person’s conduct: the MP who struck him on the head. We
must determine if the statutes and the associated regula-
tion defining willful misconduct, 38 C.F.R. § 3.1(n), bar a
veteran’s claim for benefits only if his own misconduct was
the direct cause of his injury, as Mr. Carter argues.
A
We begin with the statutory and regulatory language.
38 U.S.C. §§ 105(a) and 1131 bar a veteran from receiving
benefits for an in-service injury or disability “if the disabil-
ity is a result of the veteran’s own willful misconduct.” Id.
§ 1131. The VA has defined “willful misconduct” by regula-
tion:
Willful misconduct means an act involving
conscious wrongdoing or known prohibited ac-
tion. . . .
(1) It involves deliberate or intentional wrong-
doing with knowledge of or wanton and reck-
less disregard of its probable consequences.
. . . .
Case: 21-2077 Document: 35 Page: 4 Filed: 08/29/2022

-- 4 of 8 --

CARTER v. MCDONOUGH 5
(3) Willful misconduct will not be determinative
unless it is the proximate cause of injury,
disease or death.
38 C.F.R. § 3.1(n).
Together, the statutes deny service connection for an
injury if it is “the result of the veteran’s own willful mis-
conduct,” and the regulation further requires that the mis-
conduct be “the proximate cause of injury.” In Ollis v.
Shulkin, a case involving a veteran’s benefits claim for a
qualifying additional disability, we construed a statute
that required “the proximate cause of the disability or
death” to be the “carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of fault on the
part of the [VA].” 857 F.3d 1338, 1340 (Fed. Cir. 2017)
(quoting 38 U.S.C. § 1151(a)). We concluded that proximate
cause is defined “in terms of foreseeability,” so that liability
“extend[s] only to those foreseeable risks created by the
negligent conduct.” Id. at 1344 (citing Paroline v. United
States, 572 U.S. 434, 445 (2014)).
Under Mr. Carter’s proposed construction of the stat-
utes, the veteran’s own willful misconduct must be the di-
rect cause of the veteran’s injury for benefits to be denied.
There can be no intervening willful action of another per-
son in the causal chain. See Appellant’s Br. 12. Thus, if
Mr. Carter had injured himself when he initially struck the
MP while resisting arrest, that would be an injury that “is
a result of the veteran’s own willful misconduct.” But any
harm suffered afterward, when the MPs responded to
Mr. Carter’s initial strike, is not the “result of” his own will-
ful misconduct.
The statutes do not say that the injury must be the “im-
mediate” or “direct” result of the veteran’s misconduct. Nor
do they say that the veteran’s misconduct must be the “im-
mediate” or “direct” cause of the injury. They merely state
that the injury must be the “result of” the misconduct, 38
U.S.C. §§ 105(a) and 1131, and the VA’s regulation further
Case: 21-2077 Document: 35 Page: 5 Filed: 08/29/2022

-- 5 of 8 --

CARTER v. MCDONOUGH 6
requires that the misconduct be the proximate cause of the
injury, 38 C.F.R. § 3.1(n)(3). Mr. Carter’s reading of the
statutes ignores the regulation’s proximate causation re-
quirement. Proximate cause does not require that the
cause be the last link in the causal chain, nor is it neces-
sarily extinguished due to the intervening acts of others.
Rather, it “limits legal responsibility to ‘those [but-for]
causes which are so closely connected with the result
. . . that the law is justified in imposing liability.’” Ollis,
857 F.3d at 1344 (alterations in original) (quoting W. Page
Keeton et al., Prosser & Keeton on Torts § 41, at 264 (5th
ed. 1984)).
Here, the regulation requires a determination of
whether “the causal link between conduct”—Mr. Carter’s
resisting arrest—“and result”—his head injury—“is so at-
tenuated that the consequence is more aptly described as
mere fortuity.” Paroline, 572 U.S. at 445. The Board under-
stood that inquiry and determined that the head injury was
not a mere fortuity but rather “resulted from the military
police officer’s striking [Mr. Carter],” which in turn “was a
probable consequence of [Mr. Carter’s] resisting the offic-
ers.” Veterans Court Decision at *3. The Veterans Court af-
firmed. Id.1
Mr. Carter does not challenge the regulation. See Oral
Arg. at 11:20.2 Rather, he asserts that the regulation ap-
plies only when determining what constitutes willful mis-
conduct, not when determining what is a “result of” that
misconduct. Appellant’s Br. 13. While the regulation does
1 To the extent Mr. Carter challenges the Veterans
Court’s factual determinations or its application of the le-
gal standard to the facts of his case, we lack jurisdiction to
review them. 38 U.S.C. § 7292(d)(2).
2 A recording of the oral argument is available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21
-2077_07052022.mp3.
Case: 21-2077 Document: 35 Page: 6 Filed: 08/29/2022

-- 6 of 8 --

CARTER v. MCDONOUGH 7
define willful misconduct, it also explains when willful mis-
conduct is determinative—i.e., when it may preclude a vet-
eran from receiving benefits: “Willful misconduct will not
be determinative unless it is the proximate cause of in-
jury . . . .” 38 C.F.R. § 3.1(n)(3) (emphasis added). This part
of the regulation focuses on causation once the willful mis-
conduct has already been identified, providing a standard
for determining whether the injury is the “result of” that
misconduct. Mr. Carter’s construction would have us ig-
nore that regulatory language and assume that Congress
departed from traditional principles of causation, intend-
ing to bar only those injuries that were directly caused by
the veteran’s willful misconduct. We decline to do so.
B
Mr. Carter also argues that the Veterans Court’s inter-
pretation conflicts with the Supreme Court’s interpretation
of the phrase “results from” in Burrage v. United States,
571 U.S. 204 (2014). Appellant’s Br. 10–12. In Burrage, the
Supreme Court explained that something “results” when it
“[a]rise[s] as an effect, issue, or outcome from some action,
process or design,” and thus “a phrase such as ‘results from’
imposes a requirement of but-for causation.” Burrage, 571
U.S. at 210, 214 (alterations in original). An event cannot
be the result of an action “if the action merely played a non-
essential contributing role in producing the event.” Id. at
212. Mr. Carter argues that, under Burrage, his “willful
misconduct was not the but-for cause of his head injury”—
rather, the MP’s striking him on the head was. Appellant’s
Br. 12. We disagree.
Burrage provides a but-for causation standard to deter-
mine actual cause or cause in fact. Actual cause simply
means that “the former event caused the latter.” Paroline,
572 U.S. at 444. Proximate causes are a subset of but-for
causes—to say one event proximately caused another
means that, first, the former event caused the latter, and
second, that it has a sufficient connection to the result to
Case: 21-2077 Document: 35 Page: 7 Filed: 08/29/2022

-- 7 of 8 --

CARTER v. MCDONOUGH 8
impose liability. Id.; Ollis, 857 F.3d at 1344 (“Proximate
cause limits legal responsibility to ‘those [but-for] causes
which are so closely connected with the result . . . that the
law is justified in imposing liability.’” (alterations in origi-
nal) (quoting Keeton et al., supra, § 41, at 264)). So, to the
extent Burrage applies to these circumstances, the Veter-
ans Court’s proximate cause determination satisfies its
but-for causation standard because Mr. Carter’s initial ac-
tion of striking an MP officer—causing an MP officer to
strike back—cannot reasonably be considered to have
“played a nonessential contributing role in producing” his
head injury. Burrage, 571 U.S. at 212. Rather, his head in-
jury would not have happened “but for” that initial action.
Indeed, the Veterans Court affirmed the Board’s determi-
nation that “the head injury resulted from the military po-
lice officer’s striking [Mr. Carter] and that this action was
a probable consequence of [Mr. Carter’s] resisting the offic-
ers.” Veterans Court Decision at *3.
III
We have considered Mr. Carter’s remaining arguments
and find them unpersuasive. The Veterans Court correctly
interpreted the willful misconduct standard in 38 U.S.C.
§§ 105(a) and 1131, and so we affirm its decision denying
Mr. Carter service connection for his head injury.
AFFIRMED
COSTS
No costs.
Case: 21-2077 Document: 35 Page: 8 Filed: 08/29/2022

-- 8 of 8 --