United States Court of Appeals for the Federal Circuit 

2006-7330 

MARTHA M. MYORE, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

Respondent-Appellee. 

 Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for 

claimant-appellant. 

 Meredyth D. Cohen, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, and 

Mark A. Melnick, Assistant Director. Of counsel were Bryant G. Snee, Assistant 

Director and David B. Stinson, Trial Attorney. Of counsel on the brief were David R. 

McLenachen, Deputy Assistant General Counsel, and Michelle Doses Bernstein, 

Attorney, United States Department of Veterans Affairs, of Washington, DC. 

 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge Alan G. Lance, Sr. 
United States Court of Appeals for the Federal Circuit 

2006-7330 

MARTHA M. MYORE, 

 

 Claimant-Appellant, 

 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

__________________________

 DECIDED: June 6, 2007 

__________________________

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges. 

SCHALL, Circuit Judge. 

Martha M. Myore, appeals the decision of the United States Court of Appeals for 

Veterans Claims (“Veterans Court”) that sustained the decision of the Board of 

Veterans’ Appeals (“Board”) denying Ms. Myore’s claim for dependency and indemnity 

compensation (“DIC”). Myore v. Nicholson, No. 04-2110 (Vet. App. Apr. 19, 2006). 

Because the Veterans Court did not err in its determination that a veteran’s willful 

misconduct will prevent a finding of service connection and that DIC is only available 

where there is a service-connected death or compensable disability, we affirm.
BACKGROUND 

I. 

Ms. Myore is the widow of a Marine who died while on active duty. Sergeant 

Kenneth Myore served in the United States Marine Corps from May 1984 until his death 

while on active duty on May 26, 1990. Evidence indicated that Sgt. Myore died from a 

self-inflicted gunshot wound to the head while he was playing Russian roulette. See

Myore, slip op. at 1 (“Following an evening of drinking with friends, the veteran placed a 

single round in a .38 caliber revolver, spun the cylinder, placed the gun to his head, 

pulled the trigger, spun the cylinder again, placed the gun to his head, and pulled the 

trigger shooting himself in the head. He died later the same day at a hospital.” (record 

cites omitted)). 

II. 

Ms. Myore applied for DIC under 38 U.S.C. § 1310 based upon her husband’s 

death while on active duty. DIC is a monthly payment made by the Secretary of 

Veterans Affairs (“Secretary”) to the surviving spouse, child, or parent of a veteran 

because of a service-connected death. In June of 1991, the Department of Veterans 

Affairs (VA) Regional Office denied Ms. Myore’s application, finding that Sgt. Myore’s 

death was not service-connected because his death resulted from his own willful 

misconduct. Ms. Myore appealed to the Board. 

Following a long procedural history that included multiple decisions by the Board 

and appeals to the Veterans Court, the Board denied Ms. Myore’s DIC claim on 

2006-7330 2
September 15, 2004.1

 The Board determined that: (1) Sgt. Myore died as the result of a 

self-inflicted gunshot wound to the head while he was playing Russian roulette; (2) Sgt. 

Myore’s death was not the result of suicide; (3) his death was not accidental; and (4) his 

death was either the proximate and immediate result of his intoxication or proximately 

caused by his deliberate or intentional wrongdoing with wanton and reckless disregard 

of its probable consequences. The Board held that Sgt Myore’s death was the result of 

his willful misconduct and that the willful misconduct barred Ms. Myore from receiving 

DIC benefits. The Veterans Court affirmed the decision of the Board, stating that 

under 38 U.S.C. § 1310(a) DIC is available to a veteran’s surviving 

spouse, children, and parents where the veteran’s death results from a 

service-connected disability as defined under chapter 11 of that same title. 

Service connection under chapter 11 of title 38 will not be found where the 

disability is the result of the veteran’s willful misconduct. 38 U.S.C. 

§§ 1110, 1131. 

Myore, slip op. at 2 (quoting Myore v. Principi, 18 Vet. App. 1 (2001) (table)). Ms. 

Myore timely appealed the decision of the Veterans Court. 

 1

 In a December 1993 decision, the Board found that Sgt. Myore had died 

due to a self-inflicted wound to the head while playing Russian roulette and that he was 

not insane at the time of his death. The Board therefore denied DIC, finding that the 

veteran’s death was the result of his own willful misconduct and was not incurred in the 

line of duty. Ms. Myore appealed to the Veterans Court. On October 31, 1996, the 

Veterans Court remanded her appeal because the Board had failed to provide an 

adequate statement of reasons and bases for concluding that Sgt. Myore’s death was 

the result of his own willful misconduct. 

After further development of the record, on January 31, 2000, the Board again 

denied Ms. Myore’s claim, finding that Sgt. Myore died as the result of a self-inflicted 

gunshot wound to the head while he was playing Russian roulette and that his death 

was not the result of suicide. Ms. Myore appealed for a second time and the Veterans 

Court again vacated the Board’s decision on July 9, 2001, expressing concern about 

whether the pertinent VA regulations provide for an objective standard or principled 

basis for distinguishing willful misconduct from suicide in a Russian roulette situation. 

Ms. Myore then appealed to this court, but her appeal was dismissed in March 2003 

because the remand order of the Veterans Court was not a final order. 

Ms. Myore’s claim thus returned once again to the Board, which reached the 

same result as before and again denied her claim on September 15, 2004. 

2006-7330 3
DISCUSSION 

I. 

We have exclusive jurisdiction to “review and decide any challenge to the validity 

of any statute or regulation or any interpretation thereof” by the Veterans Court “and to 

interpret constitutional and statutory provisions, to the extent presented and necessary 

to a decision.” 38 U.S.C. § 7292(c). As spelled out more fully below, the issue before 

us is whether the Veterans Court erred in construing 38 U.S.C. § 1310. Therefore, 

because we are faced with a challenge to the Veterans Court’s interpretation of a 

statute, we have jurisdiction under 38 U.S.C. § 7292(c). “We review a statutory 

interpretation by the Court of Appeals for Veterans Claims de novo.” Andrews v. 

Principi, 351 F.3d 1134, 1136 (Fed. Cir. 2003); Bustos v. West, 179 F.3d 1378, 1380 

(Fed. Cir. 1999). 

II. 

Ms. Myore does not challenge the determination that Sgt. Myore’s death was the 

result of his own willful misconduct.2 Rather, she argues that the Veterans Court erred 

in its interpretation of § 1310, which reads: 

 2

 Except to the extent that an appeal from the Veterans Court presents a 

constitutional issue, we may not review a challenge to a factual determination, or a 

challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. § 

7292(d)(2). 

2006-7330 4
(a) When any veteran dies after December 31, 1956, from a serviceconnected or compensable disability, the Secretary shall pay dependency 

and indemnity compensation to such veteran’s surviving spouse, children, 

and parents. The standards and criteria for determining whether or not a 

disability is service-connected shall be those applicable under chapter 11 

of this title. 

 (b) Dependency and indemnity compensation shall not be paid to the 

surviving spouse, children, or parents of any veteran dying after 

December 31, 1956, unless such veteran (1) was discharged or released 

under conditions other than dishonorable from the period of active military, 

naval, or air service in which the disability causing such veteran’s death 

was incurred or aggravated, or (2) died while in the active military, naval, 

or air service. 

Ms. Myore claims that she is entitled to DIC because Sgt. Myore died while on 

active duty, and pursuant to subsection (b)(2), survivors of active duty service members 

are entitled to DIC regardless of the nature of the member’s death. Ms. Myore argues 

that the Veterans Court erred when it applied subsection (a)’s requirement that a 

disability be service-connected as determined by chapter 11 as a bar to compensation 

under subsection (b)(2). Under Ms. Myore’s interpretation of the statute, subsection (a) 

and subsection (b) are two alternative provisions authorizing a DIC award. According to 

Ms. Myore, subsection (b) authorizes DIC when a service member dies while on active 

duty and there is no reference to chapter 11 or willful misconduct limiting the 

authorization. Ms. Myore notes that no active duty service member can qualify for 

benefits under chapter 11 because that chapter is limited to compensation to the 

veteran for service-connected disabilities. Therefore, Ms. Myore contends, the 

reference to chapter 11 found in subsection (a), if applied with equal force to subsection 

(b)(2), would preclude a DIC award to the survivors of any service member who dies 

while on active duty, rendering subsection (b)(2) superfluous. This, Ms. Myore urges, 

2006-7330 5
would be an unreasonable reading of the statute and contrary to the Congressional 

intent of providing survivors of active duty service members DIC. 

The government responds that subsection (a) and subsection (b) are not two 

separate provisions setting forth alternative bases for DIC. Rather, the government 

argues, subsection (b) is a limitation on subsection (a)’s DIC authorization, meant to 

ensure that DIC is not paid upon the death of a person who served dishonorably. 

According to the government, this reading of the statute is clear both from the negative 

language used in subsection (b) and also from an analysis of title 38 as a whole. Thus, 

the government urges that the positive language in subsection (a) sets forth an 

entitlement to benefits, while the negative language in subsection (b) represents a 

limitation on that entitlement. The government explains that it is irrelevant that an active 

duty service member who dies on active duty would not be entitled to compensation 

under chapter 11 because § 1310 only refers to chapter 11 as setting forth the standard 

for determining service connection. The only portion of chapter 11 relevant to this 

appeal, according to the government, is the portion that says willful misconduct 

precludes a finding of service connection. 

III. 

“Statutory interpretation begins with the language of the statute, the plain 

meaning of which we derive from its text and its structure.” McEntee v. Merit Sys. Prot. 

Bd., 404 F.3d 1320, 1328 (Fed. Cir. 2005). If the statutory language is clear and 

unambiguous, the inquiry ends with the plain meaning. Roberto v. Dep’t of the Navy, 

440 F.3d 1341, 1350 (Fed. Cir. 2006). 

2006-7330 6
The Veterans Court correctly construed the relevant statute, 38 U.S.C. § 1310. A 

plain reading of the statute reveals that the two subsections are to be read together. 

Subsection (a) sets forth the basic entitlement to DIC by explicitly requiring the 

Secretary to pay DIC to specified individuals under certain circumstances. The 

threshold criterion for entitlement to DIC under subsection (a) is the death of a veteran 

due to a service-connected or compensable disability. Subsection (b) places a 

constraint on that entitlement: it ensures that only the survivors of veterans who did not 

serve dishonorably receive benefits. The determination of what constitutes honorable 

service is set forth in subsections (b)(1) and (b)(2) respectively—either the veteran was 

discharged under conditions other than dishonorable or the veteran died while still on 

active duty. The relationship of subsection (a) as an authorizing provision and 

subsection (b) as a limitation on that authorization is evidenced by the chosen 

language. The authorizing provision uses affirmative language to grant benefits (“the 

Secretary shall pay dependency and indemnity compensation”), while the limiting 

provision uses negative language (“[DIC] shall not be paid . . . unless”). Additionally, 

the structure of the statute does not indicate that the subsections are to be read as two 

separate bases for awarding benefits, which would be the case if the disjunctive “or” 

appeared in between the subsections. See, e.g., Van Wersch v. Dep’t of Health &

Human Servs., 197 F.3d 1144, 1151 (Fed. Cir. 1999) (“[I]n the English language, the 

word ‘or’ unambiguously signifies alternatives.”). Therefore, it follows that the criteria 

from both subsections (a) and (b) must be met in order to qualify for benefits under 

§ 1310. 

2006-7330 7
Consideration of the statute in the overall context of title 38 reveals the 

Congressional intent that DIC be available only for service-connected deaths. 38 

U.S.C. § 101(14)(A) defines the term dependency and indemnity compensation as “a 

monthly payment made by the Secretary to a surviving spouse, child, or parent . . . 

because of a service-connected death occurring after December 31, 1956.” (emphasis 

added).3 Additionally, the title of chapter 13 is “Dependency and Indemnity 

Compensation for Service-Connected Deaths” (emphasis added). Thus, the intent of 

Congress that the statutory grant of benefits under § 1310 be available only for serviceconnected deaths is clear. 

Section 1310(a) requires that the standards and criteria for determining whether 

or not a disability is service-connected be those applicable under chapter 11 of title 38. 

Chapter 11 sets forth several bars to a finding of service connection, one of those bars 

being that an injury is not considered service-connected if it was a result of the person’s 

own willful misconduct. See, e.g., 38 U.S.C. § 1110 (awarding disability compensation 

for injury suffered or disease contracted in line of duty, but further providing that “no 

compensation shall be paid if the disability is the result of the veteran’s own willful 

misconduct”); 38 U.S.C. § 1113 (providing that presumption of service connection 

contained in 38 U.S.C. §§ 1112, 1116, 1118 is rebutted by evidence establishing that a 

disability is due to the veteran’s own willful misconduct). The Veterans Court properly 

determined that one of the steps for determining whether or not a disability is service-

 3

 Similarly, 38 C.F.R. § 3.5(a) defines dependency and indemnity 

compensation as “a monthly payment made by the Department of Veterans Affairs to a 

surviving spouse, child, or parent: (1) Because of a service-connected death occurring 

after December 31, 1956.” (emphasis added). 

2006-7330 8
connected in chapter 11 is a determination of whether the disability is the result of the 

veteran’s own willful misconduct and that a finding of willful misconduct precludes a 

finding of service connection for the purposes of DIC entitlement under § 1310. 

There is no risk that this interpretation of the statute will deny all survivors of 

service members who die while on active duty DIC benefits. The term “veteran,” as 

used in title 38 of the United States Code, is defined to mean “a person who served in 

the active military, naval, or air service, and who was discharged or released therefrom 

under conditions other than dishonorable.” 38 U.S.C. § 101(2). The term “veteran,” as 

it is used in chapter 13, “includes a person who died in the active military, naval, or air 

service.” 38 U.S.C. § 1301. Under the statutory scheme, for a veteran’s death to be 

considered service-connected it must result from a disability incurred in the line of duty. 

See 38 U.S.C. § 101(16).4

 For an active duty service member, there is a presumption 

that an injury incurred during active military, naval, or air service was incurred in the line 

of duty unless the injury was a result of the person’s own willful misconduct. 38 U.S.C. 

 4

 “The term ‘service-connected’ means, with respect to disability or death, 

that such disability was incurred or aggravated, or that the death resulted from a 

disability incurred or aggravated, in line of duty in the active military, naval, or air 

service.” 38 U.S.C. § 101(16). 

“The term ‘non-service-connected’ means, with respect to disability or death, that 

such disability was not incurred or aggravated, or that the death did not result from a 

disability incurred or aggravated, in line of duty in the active military, naval, or air 

service.” 38 U.S.C. § 101(17). 

2006-7330 9
§ 105(a).5

 Therefore, 38 U.S.C. § 1310 authorizes DIC for the survivors of a service 

member who dies while on active duty if the death is not the result of the service 

member’s own willful misconduct. Because Sgt. Myore’s death was the result of his 

own willful misconduct, Ms. Myore, his widow, is not entitled to DIC. 

CONCLUSION 

For the foregoing reasons, the decision of the Veterans Court affirming the 

Board’s denial of Ms. Myore’s DIC claim under § 1310 is affirmed. 

AFFIRMED 

 5

 38 U.S.C. § 105(a) reads: 

An injury or disease incurred during active military, naval, or air service will 

be deemed to have been incurred in line of duty and not the result of the 

veteran’s own misconduct when the person on whose account benefits 

are claimed was, at the time the injury was suffered or disease contracted, 

in active military, naval, or air service, whether on active duty or on 

authorized leave, unless such injury or disease was a result of the 

person’s own willful misconduct or abuse of alcohol or drugs. 

2006-7330 10