Citation Nr: 1024670	
Decision Date: 07/01/10    Archive Date: 07/09/10

DOCKET NO.  09-14 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little 
Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for the cause of the 
Veteran's death.

2.  Entitlement to Dependency and Indemnity Compensation (DIC) 
under 38 U.S.C.A. § 1318.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and her Mother-in-Law

ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from October 1977 until his 
retirement in October 1997.  He died in September 2007.

The appeal comes before the Board of Veterans' Appeals (Board) 
from a February 2008 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in North Little Rock, 
Arkansas, which denied service connection for the cause of the 
Veteran's death, entitlement to DIC benefits, and entitlement to 
accrued benefits.  

In February 2010, the appellant testified before the undersigned 
Veterans Law Judge sitting at the RO (Travel Board hearing).  A 
transcript of that hearing is of record.  At the time of the 
hearing the appellant, in writing, withdrew the issue of 
entitlement to accrued benefits.  That issue is no longer in 
appellate status and will not be addressed in this decision.


FINDINGS OF FACT

1.  The VA has fully informed the appellant of the evidence 
necessary to substantiate her claim and the VA has made 
reasonable efforts to develop such evidence.

2.  The Veteran died in September 2007, and the cause of death 
was hanging.

3.  At the time of his death, the Veteran was service connected 
and in receipt of a 10 percent rating for herniated nucleus 
pulposus at L4-5 and L5-S1.  The 10 percent rating became 
effective the month following his separation from service.  He 
was not in receipt of a service-connected disability rated 
totally disabling or a total disability rating based on 
unemployability, continuously for a period of 10 or more years 
immediately preceding his death.

4.  Competent and persuasive evidence of record indicates that 
the Veteran's death was not the result of his service connected 
low back disorder, and depression was not present in service, and 
began more than one year after separation service and was not 
shown to be the result of service or any incident of service.


CONCLUSIONS OF LAW

1.  A disability incurred in or aggravated by service did not 
cause or contribute to the Veteran's death.  38 U.S.C.A. §§ 1101, 
1110, 1112, 1113, 1116, 1154, 1310 (West 2002 and Supp. 2009); 38 
C.F.R. §§ 3.300, 3.303, 3.307, 3.309, 3.310(a), 3.312 (2009).

2.  The criteria for DIC benefits pursuant to the provisions of 
38 U.S.C.A. § 1318 have not been met.  38 U.S.C.A. § 1318 (West 
2002); 38 C.F.R. § 3.22 (2009)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the Courts have been fulfilled by 
information provided to the appellant by correspondence dated in 
November 2007 and February 2009.  Those letters notified the 
appellant of VA's responsibilities in obtaining information to 
assist in completing her claim and identified the appellant's 
duties in obtaining information and evidence to substantiate her 
claim.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. 
Principi, 18 Vet. App. 112 (2004). See also Mayfield v. 
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other 
grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson 
(Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 
Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 
F.3d 1317 (Fed. Cir. 2007).  The Board also notes that 38 C.F.R. 
§ 3.159 was recently revised, effective May 30, 2008, removing 
the sentence in subsection (b)(1) stating that VA will request 
the claimant provide any evidence in the claimant's possession 
that pertains to the claim.  73 Fed. Reg. 23,353-23,356 (Apr. 30, 
2008).  

In a claim for Disability and Indemnity Compensation (DIC) 
benefits, VA's notice requirements include (1) a statement of the 
conditions, if any, for which a Veteran was service- connected at 
the time of his death; (2) an explanation of the evidence and 
information required to substantiate a DIC claim based on a 
previously service-connected condition; and (3) an explanation of 
the evidence and information required to substantiate a DIC claim 
based on a condition not yet service-connected.  See Hupp v. 
Nicholson, 21 Vet. App. 342 (2007).  In the present case, the 
appellant was notified of the Hupp requirements in the February 
2009 letter from VA.

The appellant has been made aware of the information and evidence 
necessary to substantiate her claim and has been provided 
opportunities to submit such evidence. A review of the claims 
file also shows that VA has conducted reasonable efforts to 
assist her in obtaining evidence necessary to substantiate her 
claim during the course of this appeal.  The Veteran's private, 
service department and VA treatment records have been obtained 
and associated with his claims file.  

Furthermore, the appellant has not identified any additional, 
relevant evidence that has not otherwise been requested or 
obtained.  The appellant has been notified of the evidence and 
information necessary to substantiate her claim, and she has been 
notified of VA's efforts to assist her.  See Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  As a result of the 
development that has been undertaken, there is no reasonable 
possibility that further assistance will aid in substantiating 
her claim.

Laws and Regulations

When any veteran dies after December 31, 1956, from a service-
connected or compensable disability, VA will pay dependency and 
indemnity compensation to such veteran's surviving spouse, 
children, and parents.  38 U.S.C.A. § 1310 (West 2002).  In a 
claim where service connection was not established for the fatal 
disability prior to the death of the Veteran, the initial inquiry 
is to determine whether the fatal disorder had been incurred in 
or aggravated by service.  The Board must determine whether the 
fatal disorder should have been service-connected.  38 C.F.R. § 
3.312 (2009).

In a claim where service connection is established for a 
disability prior to the death of the veteran, the initial inquiry 
is to determine whether the service-connected disability was 
either the principal or contributory cause of the veteran's 
death.  38 C.F.R. § 3.312 (2009).  In order to establish service 
connection for the cause of the veteran's death, the evidence 
must show that a disability incurred in or aggravated by active 
service was the principal or contributory cause of death.  38 
U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2009).  In 
order to constitute the principal cause of death the service-
connected disability must be one of the immediate or underlying 
causes of death, or be etiologically related to the cause of 
death.  38 C.F.R. § 3.312(b).

A service-connected disability will be considered as the 
contributory cause of death when that disability contributed 
substantially or materially to death, combined to cause death, or 
aided assistance to the production of death.  It is not 
sufficient to show that it casually shared in producing death, 
but rather it must be shown that there was a causal connection.  
Service-connected diseases involving active processes affecting 
vital organs should receive careful consideration as a 
contributory cause of death, with debilitating effects and 
general impairment of health to an extent that would render the 
person materially less capable of resisting the effects of other 
disease or injury primarily causing death.  38 C.F.R. § 3.312(c) 
(2009).

In order to be a contributory cause of death, it must be shown 
that there were "debilitating effects" due to a service-
connected disability that made the Veteran "materially less 
capable" of resisting the effects of the fatal disease or that a 
service-connected disability had "material influence in 
accelerating death," thereby contributing substantially or 
materially to the cause of death.  See Lathan v. Brown, 7 Vet. 
App. 359 (1995); 38 C.F.R. § 3.312(c)(1).

Service connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by active military 
service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 
3.303.  Service connection may be established for any disease 
diagnosed after discharge, when all the evidence, including that 
pertinent to service, establishes the disease was incurred in 
service.  38 C.F.R. § 3.303(d).

As a general matter, service connection for a disability on the 
basis of the merits of such claim is focused upon (1) the 
existence of a current disability; (2) the existence of the 
disease or injury in service, and; (3) a relationship or nexus 
between the current disability and any injury or disease during 
service.  Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. 
Derwinski, 2 Vet. App. 141 (1992).

In order for suicide to constitute willful misconduct, the act of 
self-destruction must be intentional.  A person of unsound mind 
is incapable of forming an intent (mens rea, or guilty mind, 
which is an essential element of crime or willful misconduct).  
It is a constant requirement for a favorable action that the 
precipitating mental unsoundness be service connected.  38 C.F.R. 
§ 3.302(a) (2009).

Whether a person, at the time of suicide, was so unsound mentally 
that he or she did not realize the consequences of such an act, 
or was unable to resist such impulse is a question to be 
determined in each individual case, based on all available lay 
and medical evidence pertaining to his or her mental condition at 
the time of suicide.  The act of suicide or a bona fide attempt 
is considered to be evidence of mental unsoundness; therefore, 
where no reasonable adequate motive for suicide is shown by the 
evidence, the act will be considered to have resulted from mental 
unsoundness.  A reasonable adequate motive for suicide may be 
established by affirmative evidence showing circumstances which 
could lead a rational person to self-destruction.  38 C.F.R. § 
3.302(b) (2009).  

Finally, in a claim for service connection, the ultimate 
credibility or weight to be accorded evidence must be determined 
as a question of fact.  The Board determines whether (1) the 
weight of the evidence supports the claim, or (2) the weight of 
the "positive" evidence in favor of the claim is in relative 
balance with the weight of the "negative" evidence against the 
claim: the appellant prevails in either event. However, if the 
weight of the evidence is against the appellant's claim, the 
claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

When, after careful consideration of all procurable and assembled 
data, a reasonable doubt arises regarding service origin, the 
degree of disability, or any other point, such doubt will be 
resolved in favor of the claimant.  By reasonable doubt is meant 
one which exists because of an approximate balance of positive 
and negative evidence which does not satisfactorily prove or 
disprove the claim.  38 C.F.R. § 3.102 (2009).



Factual Background and Analysis

The Veteran's service treatment records (STRs) have been 
associated with the file.  These records are silent for signs of 
an acquired psychiatric disorder, including depression or for 
alcohol abuse.  In fact, in dental health questionnaires dated 
from October 1988 to June 1997, he denied alcoholism or 
nervousness.  His July 1997 retirement physical examination 
report noted a normal psychiatric evaluation, and in the 
accompanying July 1997 report of medical history, he denied 
frequent trouble sleeping, depression or excessive worry, loss of 
memory or amnesia, or nervous trouble of any sort.

Service personnel records associated with the claims folder make 
no reference to disciplinary or other problems associated with 
alcohol abuse, or to a psychiatric disorder of any type.  

Service department medical records dated through May 2006 are 
associated with the claims folder.  In January 2002, the Veteran 
was prescribed antabuse for alcohol dependence.  He was doing 
well, had returned to work and did not have DT's (delirium 
tremors).  His treatment for alcohol abuse continued into 
February 2002, when he was prescribed an additional 60 tablets of 
antabuse.  He reported at that time a history of alcohol abuse 
for more than 20 years.  In July 2002, he was seen for muscle 
back pain after he pulled his back muscle while lifting a heavy 
television.  He related at that time, that he had had a relapse 
and was drinking a pint a day.  A May 2003 statement from a 
service department nurse practitioner was to the effect that the 
Veteran could immediately return to his employment with the 
United States Postal Service following a left shoulder strain and 
back pain.  The report showed that he had full physical capacity 
for his job.  Later service department records reveal that he 
suffered a relapse and was encouraged to stop alcohol consumption 
after he was found to have hepatitis C (April 2006)

A July 2007 office visit report from the Wagner Clinic revealed 
that the Veteran was seen complaining of depression.  He stated 
that he was angry daily, but the record did not expound on this 
statement.  He complained of insomnia.  He had stopped drinking 
alcohol two weeks earlier (1-pint of whiskey).  On evaluation, 
the examiner noted that he had normal speech, normal affect and 
normal mood.  The impression was insomnia and depression.  Ambien 
was prescribed for sleep and Prozac for the depression.

The Veteran died in September 2007, and the death certificate 
listed the cause of death as hanging.  An autopsy was performed.  

In an October 2007 statement, a nurse practitioner from the 
Internal Medicine Clinic of the Jacksonville Naval Hospital 
indicated that he was the primary care manager for the Veteran.  
In July 2002, he prescribed an antidepressant, Effexor to help 
the Veteran with depression and help him to quit alcohol.  

Post-retirement service department records include a medication 
profile that reflects that in July 2002, the Veteran was 
prescribed Effexor, 90 tablets.  There is no indication that 
subsequent to that time, he sought refills of the medication.  

During her February 2010 hearing, the appellant averred that the 
Veteran's death was caused by the depression he experienced after 
leaving the Navy.  She stated that he missed the Navy and had a 
hard time finding a job after he left the military, and became 
depressed and took his life.  She reported that he drank during 
his time in service, but after service, he drank to excess and 
was treated for alcohol abuse.  She related that an autopsy 
finding was that his blood alcohol level was 0.3 g/L.  The 
Veteran's mother also testified that a month before his death, 
the Veteran visited her and told her how much he loved his wife, 
and that his will was prepared, and that he wanted to be 
cremated.  

Although the appellant has claimed that Veteran's death was 
caused by the depression he experienced after leaving the Navy, 
she has not alleged, nor is it shown that during service the 
Veteran was treated for an acquired psychiatric disorder.  In 
fact, the first document treatment was in July 2002, when he was 
prescribed Effexor.  Unfortunately, the available medical records 
do not contain any indications why the Veteran was depressed.  
None of the medical records include any in-depth psychiatric 
evaluation of the Veteran, so the basis for his depression is 
unknown.   

The Board realizes that the autopsy protocol has not been 
obtained.  However, while such a report may confirm that the 
Veteran was intoxicated at the time of his death, it would be of 
no value in determining whether any an acquired psychiatric 
disorder had its onset in service.  The report would certainly 
provide data regarding the Veteran's physical condition at the 
time of his death, but it would not provide the Board with a 
motive for the suicide, nor a nexus opinion relating the suicide 
to a disability incurred in service.  As such, there is no 
reasonable possibility that this obtaining this evidence would 
help substantiate the claim.  38 C.F.R. § 3.159 (2009).

For VA purposes, the act of suicide or a bona fide attempt is 
considered to be evidence of mental unsoundness; therefore, where 
no reasonable adequate motive for suicide is shown by the 
evidence, the act will be considered to have resulted from mental 
unsoundness.  The Board will not dispute that the Veteran was 
mentally unsound at the time of his death.  Once again, however, 
what factors lead the Veteran to take his own life, are unknown.  

Regarding his service connected low back disorder, there is no 
indication in the record that his back disorder caused him to be 
depressed.  While he suffered two incidents of back strain and 
pain (2002 and 2003), later records are silent for complaints of 
back pain, or indications that back pain caused depression.

In summary, why the Veteran took his life is unknown.  The Board 
has considered the appellant's statements, and finds her to be a 
competent regarding facts of events that she observed and is 
within the realm of her personal knowledge; but she is not 
competent to establish that which would require specialized 
knowledge or training, such as medical expertise.  Layno v. 
Brown, 6 Vet.App. 465, 469-70 (1994); see also Visser v. Packer 
Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991) 
(lay assertion cannot be "flights of fancy, speculations, 
hunches, intuitions, or rumors about matters remote from [the 
witness's] experience;" witness not competent to describe motive 
because testimony too much like psychoanalysis, for which witness 
not qualified).  In this case, while the appellant is attempting 
to relate the Veteran's death to an adjustment problem when he 
returned to civilian life, this is speculation on her part, and 
not borne out by any statements made by the Veteran to any 
medical care providers when he sought treatment for alcohol abuse 
or depression.  Further to make such an association requires 
medical expertise in the fields of psychology or psychiatry, an 
expertise which the appellant does not possess.  

To conclude, the Veteran's death is regrettable.  However, the 
evidence does not support the appellant's contentions, and 
service connection for the cause of death is denied.  

Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. 
§ 1318.

Factual Background and Analysis

If, as here, the veteran's death is not determined to be service-
connected, a surviving spouse may still be entitled to dependency 
and indemnity compensation under 38 U.S.C.A. § 1318, if at the 
time of the veteran's death, the veteran had a service-connected 
disability rated totally disabling or a total disability rating 
based on unemployability, continuously for a period of 10 or more 
years immediately preceding his death.

At the time of his death, the Veteran was service connected and 
in receipt of a 10 percent rating for herniated nucleus pulposus 
at L4-5 and L5-S1.  The 10 percent rating became effective the 
month following his separation from service.  The Veteran had 
never filed for, nor was he shown to have a service-connected 
disability rated totally disabling or a total disability rating 
based on unemployability, continuously for a period of 10 or more 
years immediately preceding his death.

As the Veteran was not in receipt of a 100 percent disability 
rating for a service-connected disability or a total disability 
rating based on unemployability for the statutory 10 year period 
of time prior to his death, the preponderance of the evidence is 
against the claim, the benefit-of-the-doubt standard of proof 
does not apply.  38 U.S.C.A. § 5107(b).


ORDER

1.  Entitlement to service connection for the cause of the 
Veteran's death is denied.

2.  Entitlement to Dependency and Indemnity Compensation (DIC) 
under 38 U.S.C.A. § 1318 is denied.



____________________________________________
	RENÉE M. PELLETIER
	Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs