Citation Nr: 0811537 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-03 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from March 1951 to February 1954 and from May 1954 to July 1973, including honorable service in Korea and the Republic of Vietnam. The veteran died in February 2000 and the appellant is the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the benefit sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The evidence of record indicates that the veteran's death was due to suicide, and there is no evidence of record linking the suicide to service or a disability caused by service. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1310 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise an appellant of the evidence necessary to substantiate her claim for benefits and that VA shall make reasonable efforts to assist an appellant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in March 2005, VA notified the appellant of the information and evidence needed to substantiate and complete her claim for DIC, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the appellant to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim, as is now typically required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was not provided. The Board specifically finds, however, that the appellant is not prejudiced as she was given specific notice with respect to the elements of a DIC claim and cannot be prejudiced by not receiving notice of downstream issues that are not reached by a denial of the underlying benefit. The Court recently determined in Hupp v. Nicholson, 21 Vet. App. 342 (2007), that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include (1) a statement of the conditions, if any, for which a veteran was service- connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. In regards to the Court's recent decision in Hupp, the Board notes that the veteran was service connected for one disability at the time of his death and this disability was not noted in the death certificate as being a cause or contributing cause to his death. The appellant was advised as to the evidence necessary to substantiate her claim- whether by a previously service-connected condition or by a condition not yet service connected. The appellant has specifically alleged that the veteran's experiences in service and subsequent medical issues caused him to become depressed, and later, commit suicide. After review of the 2005 VCAA letter, the Board finds that it was tailored to the appellant's claim and substantially satisfies the notice requirements set forth in Hupp. Thus, any error is considered harmless at this time and the appellant has been afforded to opportunity to actively participate in the adjudication of her claim. She is not prejudiced by any such error. As such, the Board finds that VA met its duty to notify the appellant of her rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial March 2005 VCAA notice was given prior to the appealed AOJ decision, dated in May 2005. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the appellant in obtaining evidence and by affording her the opportunity to give testimony before an RO hearing officer and/or the Board, even though she declined to do so. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the claims file. The Board notes that there is no medical opinion of record indicating that the veteran committed suicide due to his service-connected disability, nor is there a medical opinion linking the veteran's death to in-service occurrences. Further, there is no evidence of record that the veteran sought in-service or post-service treatment for depression or symptoms related to depression. In this case, the record indicates that the veteran's death was found to be a suicide due to a gunshot wound to the head. Thus, there is no duty for VA to provide a medical opinion. See 38 U.S.C.A. § 5103A(a); see also, Delarosa v. Peake, No. 2007-7108 (Fed. Cir. Jan. 31, 2008) Thus, the Board finds that VA has done everything reasonably possible to notify and assist the appellant and that no further action is necessary to meet the requirements of the VCAA. The appellant contends that her husband committed suicide due to his in-service experiences. She stated that the veteran's worked hard and was highly stressed due to his military career. She noted that his tours in Korea and Vietnam affected him. The appellant asserted that the veteran's in- service stress caused him to have diverticulosis and high blood pressure. He also had a skin condition and autoimmune disease caused by his service-related duties. She opined that the veteran took his own life due to depression associated with his in-service duties and medical conditions. 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). Service connection may be granted for disability which is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, when a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice- connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). See Allen v. Brown, 7 Vet. App. 439 (1995). Hypertension is deemed to be a chronic disease under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. 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. The issue involved will be determined by 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 38 U.S.C.A. § 1310, 38 C.F.R. § 3.312(a). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301; see also VAOPGPREC 2-97. 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). 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's service medical records (SMRs) are devoid of any reference to treatment for a mental condition. Additionally, his separation examination makes no notation of a mental condition upon service discharge. The veteran's post-service medical treatment records are also devoid of any reference to treatment for a mental condition. The veteran died in February 2000 and the death certificate reflected his cause of death as a gunshot wound to the head. The manner of death was found to be a suicide. The death certificate lists no contributing causes to his death. The Board notes that an autopsy was performed and VA requested these records from the appellant. No autopsy report is of record. At the time of his death, the veteran had a 20 percent rating for service-connected vagotomy/pyloroplasty/dumping syndrome and residuals of peptic ulcer disease with diverticulosis (hereinafter, diverticulosis). The medical evidence of record reflects the veteran's continual treatment for diverticulosis since service discharge. The veteran's post-service medical records reflect treatment for high blood pressure in service; however, no competent medical evidence of record linking the veteran's hypertension, even if it started in service, to his suicide. The veteran's SMRs do not reflect treatment for a skin condition. The veteran was treated post-service for seborrhea of the scalp. There is no competent medical evidence linking the veteran's skin condition to his suicide. There is no evidence of record suggesting that the veteran had an autoimmune disease. Based on the evidence as outlined above, the Board finds that the preponderance of evidence is against the appellant's claim of service connection for the cause of the veteran's death. The veteran was not treated for a mental condition in service, nor was he treated for a mental condition following service discharge. There is no competent medical evidence of record linking the veteran's diverticulosis to his suicide, nor is there any evidence of the veteran experiencing depression in service or subsequent to service. Even if hypertension, a skin condition or the alleged autoimmune disease were found to be related to service, the preponderance of evidence would still be against the appellant's claim as there is no competent medical evidence indicating that the veteran's medical conditions caused depression, which she contends caused his suicide. Furthermore, the exclusive cause listed as the veteran's cause of death was a gunshot wound to the head. The Board appreciates the appellant's assertions that the veteran's medical conditions, including his service-connected diverticulosis, and experiences in service caused her husband to commit suicide, but her assertions are not considered competent evidence that the veteran died of suicide related to service or a service-connected disability. The appellant is competent, as a lay person, to report that as to which she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). She is not, however, competent to offer medical opinions as to cause or etiology of the claimed disability, as there is no evidence of record that the appellant has specialized medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opinion on matter requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Without evidence that the veteran committed suicide due to his service-connected diverticulosis, experiences in service or his alleged depression caused by service, there can be no finding that the veteran's suicide was related to service or a service-connected disability. Therefore, the Board finds that service connection for the cause of the veteran's death is denied. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs