Citation Nr: 1301145 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-13 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran was on active duty in the United States Navy from November 1964 to March 1970. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Following an assessment of the claims file, the Board referred the matter to the Veterans Health Administration (VHA) for an advisory opinion concerning whether the appellant was suffering from posttraumatic stress disorder (PTSD) at the time of his death, and if so, whether said disability caused or resulted in his death. This occurred in September 2012. The advisory opinion has been obtained and has been included in the claims folder for review. The appellant testified before the undersigned at a videoconference hearing in May 2012. FINDINGS OF FACT 1. The Veteran was on active duty in the US Navy and served in Vietnam as a swift boat commander. In the course of his duties, he may was exposed to combat stressors. 2. The Veteran died on or about January [redacted], 1980. The Certificate of Death lists the immediate cause of death as hemothorax due to or as a consequence of the laceration of the thoracic aorta; these injuries were found to be due to suicide. 3. At the time of the Veteran's death, he had severe posttraumatic stress disorder (PTSD) and depression that was the result of in-service combat stressors; his suicide was the result of these psychiatric disabilities. CONCLUSION OF LAW The Veteran's posttraumatic stress disorder was incurred in or aggravated by service, and said disability did proximately cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating her claim. Dependency, indemnity and compensation (DIC) will be paid to the surviving spouse of a veteran who has died of a service- connected or compensable disability. 38 U.S.C.A. § 1310 (West 2002); Wray v. Brown, 7 Vet. App. 488 (1995). 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. 38 C.F.R. § 3.312(a) (2012). The appellant will be entitled to service connection for the cause of death if it is shown that the service-connected disabilities contributed substantially or materially to cause death; that they combined to cause death; or that they aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2012). The appellant contends that as a result of her husband's service in Vietnam, he was exposed to many combat stressors which, in turn, resulted in posttraumatic stress disorder (PTSD) that caused him to commit suicide. She maintains that after returning to civilian life, he struggled for many years to cope with PTSD but that struggle came to an end when he committed suicide on or about January [redacted], 1980. The record reflects that the Veteran was in the US Navy and served in Vietnam as a swift boat commander. This suggests, according to information in the claims file, that he was in the brown water Navy, where he was on a riverine boat that came under repeated and heavy fire from the enemy in Vietnam. Per statements provided by friends of the Veteran, he was repeatedly exposed to enemy fire, and he was charged to engage the enemy when necessary for the overall mission. Approximately ten years later, the Veteran's body was found between the piers of the bridge leading from San Diego to Coronado. A determination was made that the Veteran had died due to a hemothorax due to or as a consequence of a laceration to the thoracic aorta. The death certificate shows that these injuries were the result of a suicide. The Board sought an expert medical opinion from the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2012). A VHA psychiatrist provided the opinion in December 2012. After reviewing the file, the doctor provided the following: The following opinion regarding [the veteran] is based upon review of the death certificate, the testimony of the appellant at a hearing in May 2012, a statement from the appellant dated September 5, 2007, statements from the deceased's acquaintances, service treatment and personnel records. In my opinion and to a reasonable degree of medical certainty, it is at least as likely as not that the Veteran developed PTSD and depression as the result of his participation in combat. Furthermore, it is as likely as not that PTSD and depression caused or contributed to the Veteran's suicide. . . . .... As stated above, it is my opinion that it is at least as likely as not that the Veteran developed PTSD and depression as the result of his participation in combat. Regarding PTSD, the above reports provide evidence that the Veteran was exposed to multiple traumatic events during which he "experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others." (DSM-IV-TR). It can be surmised that during these events the Veteran's response involved "intense fear" and perhaps "helplessness or horror." (DSM-IV-TR). The testimonies and statements also support that it is more likely than not that the Veteran exhibited re-experiencing of traumatic combat events, for example the incident when he awoke and was looking for a gun, avoidance behavior, certainly avoiding conversations about his experiences in combat and possibly decreased interest in activities and hyper arousal, including decreased sleep Regarding depression, the Veteran is described above as "more withdrawn and depressed" exhibiting some degree of neuro-vegetative signs and symptoms, weight loss, decreased sleep and an objective decrease in interest. And in conclusion, again as stated above, it is my opinion that it is as likely as not that PTSD and depression did cause or contribute to the Veteran's suicide as studies have shown that PTSD is a risk factor for suicide, and suicide is a "symptom" of depression. There are no other medical opinions of record. The standards and criteria for determining whether or not a disability from which a veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Additionally, in Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992), the United States Court of Appeals for Veterans Claims, hereinafter the Court, stated the following: Further, in cases where the primary cause of death is so "overwhelming" that death would have resulted regardless of the existence of a service-connected disability, a service-connected condition may be found to be a contributory cause of death where that condition has had a "material influence in accelerating death" because it "affected a vital organ and was of itself progressive or debilitating [in] nature". Service connection may be established for a current disability in several ways including on a direct basis. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2012). Direct service connection may be established for a current disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2012). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and, (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(d) (2012); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2012). Moreover, service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection for a PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred (except where the veteran participated in combat and the diagnosis of PTSD is based on a combat stressor); and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (2011); See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125 (a) (2012). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2012). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, (and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the appellant's service), the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(d) (2012); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a veteran engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256 -58 (Feb. 8, 2000). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a non-combat veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3) (codified in 75 Fed. Reg. 39,843- 39,852). The appellant in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because the claim was appealed to the Board prior to July 13, 2010, but not decided by the Board as of July 13, 2010. The Veteran's service personnel records confirm that he was in combat. For example, on a fitness report for the period extending from October 13, 1967, to February 11, 1968, the type of position he performed was: Inshore coastal surveillance and patrol operations against insurgent Viet Cong forces. Engaged in combat as a part of Task Force 115 in South Vietnam. In the comments section of the fitness report, it was written: [The veteran] is an intelligent, stable officer with an alert mind. His ability to grasp a situation quickly and to make necessary judgments and decisions has enabled him to conduct over 110 successful combat patrols in a dangerous and hostile environment. His mental alertness has enabled him to detain several Viet Cong suspects who divulged matters of important intelligence information. His forcefulness and quiet aggressiveness would make him an excellent Destroyer Division Operations Officer. On the form, in large black letters is stamped the word "COMBAT". The that service personnel records and the historical information concerning the Veteran's unit in Southeast Asia establish that he served in a hostile area. Moreover, the Department of Defense has specifically noted in the service personnel records that he served in combat. As his stressors are consistent with service and an individual stationed in a hostile territory who served in combat, the Board finds no further verification of the stressors are necessary. In this instance, there is a positive medical opinion of record that has found that the Veteran was exposed to stressful events while in service, and that this exposure led to the development of depression and PTSD. The medical doctor has further concluded that these two acquired psychiatric disorders resulted in the Veteran's death by suicide in 1980. The Board must weigh the credibility and probative value of the medical opinions. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In this instance, there is a medical opinion that supports the appellant's assertions and there are no medical opinions or assertions that contradict those assertions. With respect to the VHA opinion, the psychiatrist was able to review the whole record including the statements provided by the friends of the Veteran. His written discussion and opinion is well-written, not equivocal, vague, or ambiguous with the assertions, and provides reasoning as to why that particular opinion is not faulty and without merit. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); see also 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Accordingly, the Board finds that prior to his death, the Veteran was suffering from the symptoms and manifestations of PTSD and depression that were the result of stressors he experienced in service. Moreover, because of these conditions the Veteran committed suicide; i.e., the psychiatric disorder caused or resulted in the Veterans' death. The evidence is; thus in favor of a finding that the Veteran's death was the result of a service connoted disability. As such, service connection for the cause of the Veteran's death is warranted. 38 C.F.R. §§ 3.102, 3.312 (2012). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs