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

______________________ 

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, 

KS, argued for claimant-appellant.

 MATTHEW JUDE CARHART, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. 

Also represented by BRIAN M. BOYNTON, PATRICIA M.

MCCARTHY, LOREN MISHA PREHEIM; CHRISTOPHER O.

ADELOYE, Y. KEN LEE, Office of General Counsel, United 

States Department of Veterans Affairs, Washington, DC. 

______________________ 

Case: 21-2077 Document: 35 Page: 1 Filed: 08/29/2022
2 CARTER v. MCDONOUGH

Before MOORE, Chief Judge, PROST 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 misconduct 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 involved in an incident with military police (MP), who identified 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 interaction 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 regional 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 misconduct.” J.A. 21. The regional office concluded that, because 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
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 office 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 probable 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 misconduct.

Mr. Carter appealed to the Veterans Court, which affirmed. Carter v. McDonough, No. 19-7598, 2021 WL 

954825, at *4 (Vet. App. Mar. 15, 2021) (Veterans Court Decision). 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.

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4 CARTER v. MCDONOUGH

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 regulation 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 disability is a result of the veteran’s own willful misconduct.” Id. 

§ 1131. The VA has defined “willful misconduct” by regulation:

Willful misconduct means an act involving 

conscious wrongdoing or known prohibited action. . . . 

(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 

. . . .

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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 misconduct,” and the regulation further requires that the misconduct 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 statutes, the veteran’s own willful misconduct must be the direct cause of the veteran’s injury for benefits to be denied.

There can be no intervening willful action of another person 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 willful misconduct.

 The statutes do not say that the injury must be the “immediate” or “direct” result of the veteran’s misconduct. Nor 

do they say that the veteran’s misconduct must be the “immediate” 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
6 CARTER v. MCDONOUGH

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 requirement. Proximate cause does not require that the 

cause be the last link in the causal chain, nor is it necessarily 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 attenuated that the consequence is more aptly described as 

mere fortuity.” Paroline, 572 U.S. at 445. The Board understood 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 officers.” Veterans Court Decision at *3. The Veterans Court affirmed. Id.1

Mr. Carter does not challenge the regulation. See Oral 

Arg. at 11:20.2 Rather, he asserts that the regulation applies only when determining what constitutes willful misconduct, 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 legal 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
CARTER v. MCDONOUGH 7

define willful misconduct, it also explains when willful misconduct is determinative—i.e., when it may preclude a veteran from receiving benefits: “Willful misconduct will not 

be determinative unless it is the proximate cause of injury . . . .” 38 C.F.R. § 3.1(n)(3) (emphasis added). This part 

of the regulation focuses on causation once the willful misconduct 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 ignore that regulatory language and assume that Congress 

departed from traditional principles of causation, intending 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 interpretation 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 nonessential 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 determine 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 

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8 CARTER v. MCDONOUGH

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 original) (quoting Keeton et al., supra, § 41, at 264)). So, to the 

extent Burrage applies to these circumstances, the Veterans Court’s proximate cause determination satisfies its

but-for causation standard because Mr. Carter’s initial action 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 injury would not have happened “but for” that initial action.

Indeed, the Veterans Court affirmed the Board’s determination that “the head injury resulted from the military police officer’s striking [Mr. Carter] and that this action was 

a probable consequence of [Mr. Carter’s] resisting the officers.” 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