Citation Nr: 1320748 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-48 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from May 1972 to June 1974. The Veteran died in October 1975. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which declined to reopen the appellant's previously denied claim of entitlement to service connection for the Veteran's cause of death. The RO's October 2010 statement of the case reflects that the RO reopened the claim on the basis of new and material evidence being submitted, and then denied service connection on the merits. Notwithstanding the RO's action to reopen the claim, the Board must first decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for the cause of the Veteran's death before adjudicating the claim on the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues have been characterized as listed on the title page consistent with the Board's decision to reopen and adjudicate on the merits. The appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2012. FINDINGS OF FACT 1. In a July 2005 Board decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death; the appellant filed an appeal to the U.S. Court of Appeals for Veterans Claims (Court), which affirmed the Board decision in an August 2007 memorandum decision. The Board's 2005 decision is now final. 2. The additional evidence received since the July 2005 Board decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the Veteran's death, or raises a reasonable possibility of substantiating the claim. 3. The Veteran died in October 1975. The cause of death was a gunshot wound as a result of suicide. 4. At the time of the Veteran's death, service connection was not in effect for any condition. 5. The probative medical evidence of record does not demonstrate that the Veteran's suicide was the result of a psychiatric disorder of service origin. 6. The probative medical evidence of record does not demonstrate that a service-connected disability caused, hastened, or materially or substantially contributed to the Veteran's death. CONCLUSIONS OF LAW 1. The evidence received since the July 2005 Board decision is new and material; and the criteria to reopen the appellant's claim for service connection for the cause of the Veteran's death, have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.302, 3.303, 3.307, 3.309, 3.312 (2012). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). For claims such as this one pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice 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 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Prior to the initial adjudication the RO sent the appellant a letter with enclosures dated in June 2008 that complied with statutory notice requirements. Therein, the RO notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. In compliance with Kent, the RO notified the appellant of the criteria for reopening a previously denied claim, the criteria for establishing service connection for the cause of the Veteran's death, and information concerning why the claim was previously denied. In compliance with Hupp, the RO explained how to establish entitlement to DIC benefits based on a service-connected disability established during the Veteran's lifetime and how to establish entitlement to DIC benefits based on a disability that was not service-connected during a Veteran's lifetime. The letter did not notify the appellant that the Veteran had not been granted service connection for any disability during his lifetime. However, the appellant was previously apprised of that information in multiple prior final decisions. Following the June 2008 notice letter, the RO adjudicated the claim in a December 2008 rating decision. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Here, the RO has obtained service records and private treatment records. The appellant was given an opportunity to submit or identify any pertinent evidence. In multiple submissions the appellant provided the RO with copies of a private medical statement dated in February 2006. All existing records identified by the appellant have been obtained. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of a veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. The RO did obtain a VA opinion regarding the etiology of the Veteran's death. The Board finds that the November 2008 opinion was based on a review of the record and is adequate for rating purposes. The Board finds that VA has complied with the VCAA's notification and assistance requirements and the claim may be adjudicated without prejudice to the appellant. REASONS AND BASES FOR FINDINGS AND CONCLUSION Reopen Claim Based on New and Material Evidence The appellant has raised a number of claims as to the underlying issue of entitlement to service connection for the cause of the Veteran's death, that have been denied in a number of final decisions of the RO and the Board, starting with a November 1977 RO decision, which the appellant did not appeal and thus became final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.160(d) (2012). The most recent final decision on this underlying issue was a July 2005 Board decision, in which the Board denied the claim for service connection for the cause of the Veteran's death, on the basis that no new and material evidence had been received since a then prior final rating decision of May 2000. The July 2005 decision of the Board is a final decision based on the evidence then of record at the time of the decision. 38 C.F.R. § 20.1100. In an August 2007 decision, the Court affirmed the Board's July 2005 decision based on the evidence of record at the time of the Board decision. In May 2006, during the period between the time of the July 2005 Board decision and the Court's August 2007 decision, the appellant first submitted to the RO a private medical statement dated in February 2006. That evidence, however, was not considered as part of the record by the Court in its decision. See Title 38, Appendix-Rules of Court of Appeals for Veterans Claims, Rule 10(a) (2012). In March 2008 the appellant filed a request to reopen the claim for service connection for the cause of the Veteran's death. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 'New' evidence is defined as existing evidence not previously submitted to agency decision makers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence received since the July 2005 Board decision includes additional private medical evidence and the report of a November 2008 VA examination. This evidence is new and material, as it was not of record at the time of the last rating decision, and it relates to a material element of the claim: whether the cause of the Veteran's death is related to service. Reopening the claim is warranted. 38 U.S.C.A. § 5108. Service Connection for the Cause of the Veteran's Death The appellant asserts entitlement to service connection for the cause of the Veteran's death on the basis that the cause of his death by suicide was related to the Veteran's service. When any Veteran dies from a service-connected disability, the Veteran's surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases, including a psychosis, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for the cause of the 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. For the service-connected disability to cause death, it must singly or with some other condition be the immediate cause of death or underlying cause, or be etiologically related. A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 that could lead a rational person to self-destruction. It is a constant requirement for favorable action that the precipitating mental unsoundness be service connected. 38 C.F.R. § 3.302. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). In adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the claim, and the claimant's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the appellant. Merits of the Claim The October 1975 Death Certificate documents that the Veteran died of a self inflicted gunshot wound. The certificate further reveals that the Veteran's death was ruled a suicide from the Veteran shooting himself with a 38 caliber gun. At the time of the Veteran's death, service connection was not in effect for any condition. The Veteran's DD Form 214MC shows that he served for about two years and had no foreign or sea service. His military specialty was field radio operator. He was discharged under honorable conditions. There are no indications in the service personnel records of any psychiatric/behavioral problems. The Veteran's service treatment records also show no indications of any psychiatric problems or of any significant physical problems during service. The report of the discharge medical examination in June 1974 shows that evaluation for psychiatric condition was normal, and the examiner did not note any defects or diagnoses referable to any conditions. In an October 1977 statement from the appellant, she stated that the Veteran had sought psychiatric treatment at the Jackson County Health Department, and that they told him they did not handle psychiatric treatment there. She stated that this was the only place she knew of where he went to seek treatment. In a letter to the appellant from the office manager of the Mississippi State Department of Health, she stated that a search of their records in the Jackson County Health Department revealed no record of treatment or services rendered to a patient by the name of the Veteran. In this regard, the manager stated that they did lose some of their records due to damage to buildings including storage during two previous hurricanes. But she said she had no way of knowing which records were lost, and she was unable to find a record on the Veteran. During an August 1993 Board hearing, the appellant testified that during the Veteran's service she witnessed him participate at a party in Russian roulette while drinking. She testified also that he tried to commit suicide four times, and that he sought treatment at the health department after the third time. She testified further regarding the Veteran's actions, behavior, and mental state during service and leading up to his suicide. In statements dated in April 2000, the Veteran's sisters and the appellant's mother stated essentially that the Veteran changed during service and came home chronically depressed. In a February 2006 statement, John Liberto, M.D., stated that he interviewed the appellant and reviewed written accounts of the Veteran's behavior from the appellant and the Veteran's relatives. On that basis Dr. Liberto concluded that the Veteran was suffering from the symptoms of both PTSD and major depression at the time of his suicide. Dr. Liberto stated that the Veteran experienced a significant and dramatic change in his behavior prior to the suicide. He stated that the reports suggested that the Veteran was experiencing isolation, sleep disturbances, agitation, and self medication, which would be symptoms of both PTSD and major depression. Dr. Liberto stated that, in summary, the Veteran was more likely than not, suffering from symptoms of both PTSD and major depression; and that the symptoms increased to the level that he committed suicide. The report of a November 2008 VA examination for evaluation for PTSD, shows that the examiner reviewed the Veteran's claims file, including various statements including from the Veteran's wife and sister, the death certificate, and a psychiatrist statement from Dr. Liberto. On review of the claims file the examiner noted that the Veteran committed suicide by gunshot in October 1975. The examiner noted that the appellant reported that the Veteran was drinking at times in service and exhibited suicidal behavior including playing Russian roulette with friends while drunk. The appellant also reported that the Veteran came home after discharge a different person. The examiner noted that the appellant reported an incident during which the Veteran took ant poison, however, when he took the ant poison, the appellant did not report him being treated at the hospital. The examiner noted that Dr. Liberto did not identify a stressor associated with his diagnosis of PTSD, and did not identify a service-connected cause for the depression. The examiner noted that there was no evidence of a combat or war-time role for the Veteran, and there was no evidence in the records that the Veteran was suffering from depression during service. The examiner noted that the June 1974 discharge medical examination report showed that the only reported abnormality was with the Veteran's feet, and the form was marked normal for psychiatric conditions. The examiner noted that a significant length of time had passed between the Veteran's discharge in June 1974 and the date of death in October 1975. The examiner noted that, although the appellant reported problematic behaviors at the Veteran's first permanent duty station, it did not appear that he ever received any treatment. The examiner stated that while the Veteran may have suffered from some type of mental disorder after service, based on the records on file there was no evidence that it was related to his service. The examiner stated that there was no evidence that the Veteran's service caused his suicide. The examiner stated that there was no evidence that the Veteran suffered from PTSD, or of a verifiable stressor or even the assertion of a stressor in all of the reports. Based on the foregoing, the examiner opined that the Veteran's suicide was not caused by or a result of PTSD; and there was no evidence that the Veteran suffered from a depressive disorder as a result of service. During a March 2012 Travel Board hearing before the undersigned Veterans Law Judge, the appellant testified essentially that the Veteran was suffering from PTSD at the time of his suicide, and this condition was related to his service. The appellant contends that the Veteran's suicide was caused by a psychiatric disorder related to the Veteran's military service. Specifically, she contends that at the time of his death the Veteran had PTSD or major depression due to his military service. Implicit in that contention, the appellant maintains that the Veteran was mentally unsound as a result of a psychiatric disorder of service origin. However, there is no evidence that supports her contention. The available service personnel and treatment records contain no reference to a psychiatric disorder; and at discharge the evaluation on examination was normal for psychiatric conditions. The contemporaneous record prior to his suicide is silent for any other suggestion that the Veteran had a diagnosis of PTSD or any other psychiatric condition. As laypersons, the appellant and family members do not possess the necessary knowledge of medical principles to make a determination that the Veteran had PTSD or other psychiatric condition during service, or that the suicide resulted from a precipitating mental unsoundness that was service connected. Their assertions, standing alone, have no probative value as to any of their contentions. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board has considered the recent opinions contained in the February 2006 statement received from Dr. Liberto and in the November 2008 VA examination report. Dr. Liberto's opinion is based solely on the lay statements of the appellant and family members. His findings and diagnoses are not consistent with the contemporaneous medical record evidence during service or the record thereafter, prior to the Veteran's suicide. While the Veteran's suicide reflects a precipitating mental unsoundness associated with his suicide, the contemporaneous medical record evidence during service and prior to the suicide does not show that he had PTSD or any other psychiatric condition in service or as a result of his service. The November 2008 VA examination report shows that the examiner's findings regarding diagnosis are consistent with the contemporaneous medical evidence during service and afterward prior to the suicide. The record shows no complaints, findings, or diagnosis of PTSD or major depression in service; and shows no indication that a precipitating mental unsoundness associated with suicide was related to service. For these reasons, the Board finds the February 2006 statement received from Dr. Liberto to be of limited probative value, and finds the evidence of the VA examination report to be probative of the questions at hand. There is no competent evidence relating any psychiatric condition or any condition shown in service as a cause or contributing factor in the cause of death. As such, service connection based on findings that Veteran's death was due to a service-connected disability as the principal or contributory cause of death, under 38 C.F.R. § 3.312(a), is not warranted. The Board has considered the provisions regarding mental unsoundness and suicide. 38 C.F.R. § 3.302. It is not fully clear whether the Veteran was mentally unsound at the time of his death, however, this is not critical to the issue on appeal. The Veteran was not service-connected for a psychiatric disorder at the time of his death. The evidence weighs heavily against a finding that service connection was warranted for a psychiatric impairment. The most probative evidence establishes that the Veteran died of a self-inflicted wound approximately 16 months after his service, but that such act was unrelated to any incident of service. The preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death; there is no doubt to be resolved; and service connection is not warranted for the cause of the Veteran's death. ORDER New and material evidence has been presented, the claim of service connection for the cause of the Veteran's death is reopened. Entitlement to service connection for the cause of the Veteran's death is denied. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs