Citation Nr: 1316102 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 10-36 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served in the Navy from August 1971 to August 1977, from June 1984 to September 1987, and from October 1988 to July 1999. He died in January 2009. The appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. FINDINGS OF FACT 1. The Veteran died in January 2009 by a gunshot wound to the head that occurred at the Veteran's residence. 2. At the time of his death, the Veteran was service-connected for sleep apnea, atherosclerotic heart disease, hypertension, bilateral patellofemoral syndrome, bilateral carpal tunnel syndrome (status post surgical repair), residuals of a right foot injury (status post surgical repair), lumbar spondylosis, residuals of a dislocated right shoulder (status post surgical repair), residuals of a cholecysectomy, anemia, kidney stones (status post removal), and left trigger thumb (status post surgical repair). 3. The Veteran had a mood disorder that was proximately due to or the result of service-connected disabilities. 4. The mood disorder contributed substantially and materially to the Veteran's cause of death (suicide). 5. At the time of the Veteran's death, he was so unsound mentally that he did not realize the consequence of such an act of suicide, was unable to resist such an impulse, and had no other reasonable adequate motive for suicide. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5106 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.301, 3.302, 3.303, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is granting service connection for the Veteran's cause of death. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Depression is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to a service connection analysis regarding whether the Veteran's depression was related to service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b) which is applicable to this appeal, the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Compensation shall not be paid if the disability was the result of a veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2012). 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) (2012). 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 the evidence shows no reasonable adequate motive for suicide, it will be considered to have resulted from mental unsoundness and the act itself is considered to be evidence of mental unsoundness. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances that could lead a rational person to self-destruction. 38 C.F.R. § 3.302(b) (2012). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Cause of Death Analysis The appellant is seeking service connection for the cause of the Veteran's death (suicide), which she contends is due to depression, which in turn is claimed as secondary to service-connected disabilities. In an October 2009 statement, the appellant stated that she believed her husband had a mental illness that was the principal or contributory cause of his death, and she believed that he did not have control of himself when he committed this horrendous act. In an August 2010 statement, the appellant contends that, at the time of his death, her husband suffered severe depression due to constant pain and suffering from his service-connected disabilities. After reviewing all the lay and medical evidence, including the appellant's statements asserting that the Veteran's suicide was due to depression secondary to a service-connected disabilities, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran had a diagnosed mood disorder which was proximately due to or the result of service-connected disabilities, whether this mood disorder contributed substantially or materially to the cause of his death by suicide, and whether this act of suicide did not constitute willful misconduct under 38 C.F.R. § 3.302. Because the Board is granting service connection for the cause of the Veteran's death based on a secondary theory of entitlement (that he had a mood disorder secondary to other service-connected disabilities), and because the evidence of record does not otherwise indicate that a diagnosed mood disorder was related directly to service, the Board need not address whether service connection for the cause of the Veteran's death is warranted on a direct service connection theory. Cf. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (VA must consider the possible theories of entitlement raised by the claimant or the evidence of record). The certificate of death shows that the Veteran died in January 2009 due to a gunshot wound to the head. The injury was stated to have occurred at the Veteran's residence where he shot himself with a 12 gauge shotgun. The appellant contends that the Veteran's suicide was due to depression that was due to service-connected disabilities. The Veteran was not service connected for a psychiatric disability at the time of his death. At the time of the Veteran's death, he was service-connected for sleep apnea, atherosclerotic heart disease, hypertension, bilateral patellofemoral syndrome, bilateral carpal tunnel syndrome (status post surgical repair), residuals of a right foot injury (status post surgical repair), lumbar spondylosis, residuals of a dislocated right shoulder (status post surgical repair), residuals of a cholecysectomy, anemia, kidney stones (status post removal), and left trigger thumb (status post surgical repair). The Veteran was in receipt of a total disability rating based on individual unemployability due to service-connected disabilities. The Board finds that the lay and medical evidence of record demonstrates that the Veteran exhibited symptoms of a mood disorder post-service. Psychiatric evaluations are not of record; however, the Veteran was noted to have a history of depression in November 2006. Evidence of record shows that the Veteran was prescribed Zoloft (sertraline HCL) from 2002 to 2004, in 2006, and in 2007. It is unclear whether Zoloft was prescribed for treatment of headaches or for a psychiatric disability. An undated medication list indicates that Zoloft was prescribed for treatment of headaches. In an October 2009 statement from the Veteran, he stated that stress caused more and more headaches even with the treatment of daily Zoloft. The appellant and lay witnesses have provided statements identifying symptoms of depression and suicidal thoughts preceding the Veteran's death. In August 2009, January 2010, and August 2010 statements, the appellant described increasing symptoms of depression which she witnessed over time. She described specific incidents in which the Veteran's temper was out of control or where he exhibited strange behavior, and she described one incident where the Veteran threatened their lives when he put a gun to his head while he was driving and accelerated the car toward a semi-truck, stating that they were all going to die. In a June 2012 statement, the appellant's sister stated that the Veteran could not tolerate his medical problems, that he told her that he could not live with all of this pain, and that he was hurting, could not sleep at night, and did not want to live anymore. In a June 2012 statement, a friend also described the Veteran's symptoms of depression related to pain, and reported that the Veteran had often alluded to suicide over the last five years of his life. The Board finds that the appellant and other lay witnesses are competent to describe the Veteran's psychiatric symptoms, including depression, and actions preceding his death. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (holding to be legal error the categorical requirement that the evidence of nexus of a veteran's death by suicide be "medical" and that a widow's lay assertion that a mental disability had developed in service and had caused the veteran to commit suicide was at least potentially competent to establish both mental disability in service and a nexus between service and current mental disability). The Board finds these statements to be internally consistent, consistent with other evidence of record, and to be credible. While a psychiatric diagnosis was not documented in medical records at the time of the Veteran's death, a June 2010 VA opinion, September 2012 private opinion, and March 2013 VHA opinion all indicate, based a review of the record, that the Veteran had a post-service diagnosis of depression or a mood disorder. For these reasons, the Board finds that the Veteran had a diagnosed mood disorder at the time of his death. The Board finds that the diagnosed mood disorder is proximately due to or the result of service-connected disabilities, and that this mood disorder contributed substantially or materially to the Veteran's cause of death by suicide. While the record contains a June 2010 VA medical opinion which shows, based on a review of record, that depression was not indicated in service and the Veteran's suicide was not caused by or a result of in-service diagnosis of a personality disorder, the opinion did not address the appellant's more recent assertion with regard to secondary service connection, that is, that the Veteran's mood disorder was caused or worsened by his service-connected disabilities. In a September 2012 opinion, Dr. A.F., Ph.D., wrote that the Veteran's medical conditions and sleep apnea were a significant factor in the development of his major depressive disorder, that major depressive disorder resulted in the Veteran taking his own life, and that the suicide was more likely than not a result of service-connected medical conditions. The record also contains a medical encyclopedia article indicating that people with poorly treated sleep apnea often have an increase in anxiety and depression, and an online interview with a psychiatrist which indicates that sleep apnea can be linked to depression and suicidal thoughts. The Board finds that Dr. A.F.'s opinion is probative and indicates that the Veteran had a mood disorder, diagnosed as major depressive disorder, secondary to his service-connected disabilities, and that major depressive disorder contributed substantially or materially to the Veteran's cause of death by suicide. The Board finds that the medical encyclopedia article lends some support to Dr. A.F.'s opinion relating service-connected sleep apnea to depression. A March 2013 VHA examiner also opined that it is at least as likely as not that the Veteran developed symptoms of a mood disorder as a result of his service-connected medical conditions. He reasoned that the medical records documented service-connected medical conditions which caused him chronic pain. Testimony submitted by family and friends also documented that the Veteran suffered from chronic pain and depression, and linked the complaints of depression to the experience of pain. The VHA examiner further reasoned that there was no clear documentation the presence of a mood disorder prior to the onset of physical dysfunction and chronic pain caused by the service-connected medical conditions. The VHA examiner opined that it was at least as likely as not that the Veteran's mood disorder caused his suicide. He reasoned that testimony of friends and family seemed to indicate that the Veteran experienced periods of hopelessness mixed with periods where he was less distressed. The examiner stated that this would be typical of a mood disorder and he could find no evidence of other likely causes of the Veteran's suicide. The Board finds that the VHA opinion is thorough, well-reasoned, and was based on an accurate factual background as well as the examiner's own medical expertise and is, thus, probative. The VHA opinion was based, in part, on statements provided by the Veteran's friends and family describing his symptoms and presentation prior to his death which the Board has found to be credible. The opinion is further supported by Dr. A.F.'s medical opinion. For these reasons, the Board finds that the evidence relates the Veteran's cause of death (suicide) to a mood disorder which is proximately due to or the result of service-connected disabilities. Because the Veteran's cause of death was a result of suicide, there is additionally a threshold question of whether such act constitutes willful misconduct, thus barring payment of compensation. Under VA regulations, in order for suicide to constitute willful misconduct, the act of self-destruction must be intentional. The law provides that a person of unsound mind is incapable of forming an intent, and it is a constant requirement for favorable action that the precipitating mental unsoundness be service connected. 38 C.F.R. § 3.302. Resolving reasonable doubt on this question in favor of the appellant, the Board finds that, at the time of the Veteran's death, he was so unsound mentally that he did not realize the consequence of such an act of suicide, was unable to resist such an impulse, and he had no other reasonable adequate motive for suicide. The March 2013 VHA examiner opined that it is at least as likely as not that the Veteran was so unsound mentally that he did not realize the consequence of an act of suicide or was unable to resist such an impulse to commit suicide. The VHA examiner reasoned that the Veteran's waxing and waning of hopelessness and suicide in front of family members led him to believe that the suicide was an irresistible impulse created by the Veteran's symptoms of depression. Again, the Board finds that the VHA opinion is probative as it is well-reasoned, and was based on an accurate factual background. Moreover, the VHA examiner stated that he found no other likely causes for the Veteran's suicide. The law provides that where the evidence shows no reasonable adequate motive for suicide, it will be considered to have resulted from mental unsoundness and the act itself is considered to be evidence of mental unsoundness. See 38 C.F.R. § 3.302. For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that the Veteran's act of suicide did not constitute willful misconduct under 38 C.F.R. § 3.302. For the reasons discussed above, the Board finds that the Veteran's cause of death is related to his service-connected disabilities, which caused his mood disorder, which in turn lead to the act of suicide, and that the act of suicide did not constitute willful misconduct. Resolving reasonable doubt in the appellant's favor, the Board finds that service connection for the Veteran's cause of death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs