Citation Nr: 1027928 Decision Date: 07/27/10 Archive Date: 08/10/10 DOCKET NO. 07-05 497 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida 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: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from June 1957 to November 1967. He died in January 2006. The appellant is the Veteran's surviving spouse. This appeal initially came to the Board of Veterans' Appeals (Board) from a July 2006 rating decision. FINDINGS OF FACT 1. The Veteran died in January 2006 of a self-inflicted gunshot wound. 2. At the time of his death, the Veteran was service connected for diabetes mellitus, bilateral peripheral vascular disease, coronary artery disease with hypertension, bilateral peripheral neuropathy, residuals of a stroke, and impotence. 3. The Veteran had been rated as totally disabled since February 1996. 4. Medical evidence shows that the Veteran's death was a direct result of his depression which was caused by his service connected disabilities. 5. The grant of service connection for the cause of the Veteran's death renders moot the appellant's claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. CONCLUSIONS OF LAW 1. Criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.302, 3.312 (2009). 2. The appellant's claim of entitlement to DIC under the provisions of 38 U.S.C.A. §§ 1318 is moot. 38 U.S.C.A. § 1318, 7104 (West 2002); C.F.R. §§ 3.22, 20.101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for the Cause of Death Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The death of a Veteran will be considered as having been due to a service- connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). The issue involved will be determined by the exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. See id. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. However, compensation shall not be paid if a disability is the result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c). In fact, the Federal Circuit has held that a finding of willful misconduct precludes a finding of service connection for the purposes of DIC entitlement under 38 U.S.C.A. § 1310. See Myore v. Nicholson, 489 F.3d 1207, 1212 (2007). In order for a 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 in a suicide case that the precipitating mental unsoundness be service connected. 38 C.F.R. § 3.302(a). 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). The Veteran committed suicide in January 2006. At the time of his death, the Veteran was service connected for a number of disabilities including diabetes mellitus, peripheral vascular disease, peripheral neuropathy, coronary artery disease, impotence, and residuals of a right subcortical stroke. He was considered 100 percent disabled for VA purposes due to his service connected disabilities since February 1996. However, he was not service connected for any psychiatric disorder, nor had he ever been found to be of unsound mind. The appellant's representative has argued that at the time of his death, the Veteran had a psychiatric disability, such as depression, which was the result of his service connected disabilities. The representative suggested that this disability was of such severity that it caused him to be of unsound mind at the time of his death such that he either did not realize the consequence of his actions or was unable to resist such an impulse. VA treatment records do not show that the Veteran was ever actually diagnosed with a psychiatric disability during his lifetime, and he specifically denied having depression on several occasions. However, screening in December 2005 appears to indicate the Veteran did have depression and in May 2007 the Veteran's surviving spouse testified that the Veteran was not very forthcoming with the doctors in reporting his symptomatology. She reported noticing that the Veteran was having mood swings and would become sullen or withdrawn at times. She reported that on the day of the Veteran's death she had gone to work for about an hour when he called and told her that he thought that he may have taken the wrong medication, that he was not okay, and that he was going to go shoot himself. The appellant reported that she arrived home five minutes later, but he was already dead in the front yard. Based on the appellant's testimony, the Board remanded the appellant's claim to obtain a medical opinion of record as to the Veteran's state of mind at the time of his death. In April 2010, the Veteran's claims file was provided to the director of geriatric psychiatry at a VA medical center. After reviewing the file, the geriatric psychiatrist concluded that the Veteran did in fact have a psychiatric disability at the time of his death that was the result of his service connected disabilities; that the psychiatric disability caused the Veteran to be of unsound mind at the time of his suicide such that he either did not realize the consequences of his actions or was unable to resist such an impulse; and that the unsound mind was caused by the Veteran's service connected disabilities. The geriatric psychiatrist explained that based on the evidence of record, the Veteran met the criteria for depression and cognitive disorder at the time of his death. The geriatric psychiatrist acknowledged that the Veteran had denied being depressed, but noted that there were clear depression indicators including the appellant's statements, a positive depression screening, poor glucose control, non adherence to medication, irritability and isolativeness. Additionally, the geriatric psychiatrist noted that while the Veteran had neuropathic and joint pain, he did not appear to be taking any pain medications. The Veteran was falling more frequently and was becoming less physically and socially active. The geriatric psychiatrist explained that pain and poor quality of life increase the severity of depression; and that the hallmark of depression in older people is its comorbidity with medical illness. Additionally, he noted that masked depression is common in this population. Thus, the geriatric psychiatrist concluded that it was more likely than not that the Veteran had depression that was related to his diabetic complications and that this contributed to his death. The geriatric psychiatrist then explained that MRI findings and the results of neuropsychometric testing had shown that evidence of cerebrovascular disease is common in diabetics. He noted that the Veteran was service connected for a subcortical CVA; which he explained was important, because the structural and functional deficits from a CVA can be localized on testing to the frontal lobes of the brain, which are important in foresight, planning, executive function and inhibiting impulsive actions. Additionally, the geriatric psychiatrist explained that when a person is depressed, his thinking becomes distorted and pessimistic, such that he is unable to see any end to his suffering and thinks that others will be better off without him. In the Veteran's case, the geriatric psychiatrist concluded that the combination of poor executive function and impulse control, combined with depressive cognitive distortions, pain and access to a gun led to the Veteran's suicide. Thus, he opined that it was more likely than not that the combination of the Veteran's service connected disability related depression and vascular cognitive impairment caused the Veteran to be of unsound mind at the time of his suicide. No reasonable adequate motive for the Veteran's suicide is shown by the evidence, and the act will therefore be considered to have resulted from mental unsoundness. The medical opinion of record confirmed the Veteran was not of sound mind at the time he committed suicide and attributed the cause of the Veteran's suicide to his two psychiatric conditions (depression and cognitive disorder). While the Veteran was not service connected for any psychiatric disability at the time of his death, the geriatric psychiatrist who reviewed the case concluded that it was the Veteran's service connected disabilities that caused his psychiatric conditions; and he provided a very clear rationale for such a conclusion. The geriatric psychiatrist then explained how the psychiatric conditions resulted in the Veteran being unsound of mind and eventually led to his unfortunate suicide. As such, the Board concludes that the Veteran's service connected disabilities either caused or at the very least contributed substantially or materially to cause the Veteran's death. Thus, the criteria for service connection for the cause of the Veteran's death have been met, and the appellant's claim is granted. Also on appeal is the appellant's claim for DIC benefits under 38 U.S.C.A. § 1318. DIC benefits are payable under certain circumstances if the service member was in receipt of, or entitled to receive, compensation at the time of death for a service connected disability that had been totally disabling for a specified period of time. DIC benefits granted to a surviving spouse under 38 U.S.C.A. § 1318 would be paid in the same manner as if the Veteran's death were service connected.38 U.S.C.A. § 1318(a). The Board's above grant of service connection for the cause of the Veteran's death recognizes that his death was the proximate result of a disease or injury incurred in service. The United States Court of Appeals for Veterans Claims (Court) has indicated that, only if an appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C.A. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the Veteran's death, the claim of entitlement to DIC under 38 U.S.C.A. § 1318 is moot, and this aspect of the appellant's claim is dismissed. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, VCAA need not be further discussed. ORDER Service connection for the cause of the Veteran's death is granted. DIC pursuant to 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs