Citation Nr: 1330514 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-04 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) under the provisions of 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Walter E. Suttle, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION Please note 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 & Supp. 2012). The Veteran served on active duty from June 1955 to June 1959 and from September 1975 to June 1977, retiring with more than 20 years of active service. He died in October 1989. The appellant is the Veteran's surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO denied the appellant's claim for service connection for the case of the Veteran's death and entitlement to DEA under the provisions of 38 U.S.C. Chapter 35. A Travel Board hearing was held in November 2011 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In April 2012, the Board remanded the claim for additional development, to include obtaining a medical opinion regarding the matter at hand. The claim has now been returned for further appellate review. FINDINGS OF FACT 1. A certificate of death shows that the Veteran died in October, 1989, as a result of a self-inflicted gunshot wound to the chest. 2. At the time of the Veteran's death, service connection was in effect for hypertension (10%), residuals of a left inguinal hernia (0%), bilateral high frequency hearing loss (0%), and tinnitus (0%). 3. No evidence shows that the Veteran suffered from an acquired psychiatric disorder related to military service. 4. At the time of death, the Veteran did not have a permanent and total service-connected disability. CONCLUSIONS OF LAW 1. A service-connected disability did not cause the Veteran's death or contribute substantially or materially to cause his death. 38 U.S.C.A. §§ 1112, 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.302, 3.303, 3.307, 3.309, 3.312 (2012). 2. Eligibility requirements for DEA under Title 38, Chapter 35, United States Code, have not been met. 38 U.S.C.A. § 3501(a)(1)(D) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.807, 21.3020, 21.3021(a)(2) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326 (2012); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1) (2012) , removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his/her possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to the initial adjudication of the appellant's claims, in June 2007 VA sent her a letter in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was notified of the evidence that was needed to substantiate her claims; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist her in obtaining evidence, but that it was her responsibility to provide VA with any evidence pertaining to her claims. See Pelegrini v. Principi, (Pelegrini II), supra. In the context of a Dependency and Indemnity Compensation (DIC) claim, section 5103(a) 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, 352-53 (2007). Such notice was provided in an April 2012 letter. Moreover, the appellant was provided notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, supra. With respect to the appellant's claim for DEA benefits, the Board notes that there are some claims to which the VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). For example, it has been held not to apply to claims that turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). The Board finds that the DEA issue in this case turns on statutory interpretation. Smith, supra, 14 Vet. App. at 231-32. Thus, because it is the law as mandated by statute, and not the evidence, that is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, supra. During the November 2011 hearing, in relevant part, the presiding VLJ identified the present issues on appeal, and the testimony of the appellant, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the current appellate claims; i.e., the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims. Finally, neither the appellant nor her attorney representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012), nor has she identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Veteran's service treatment records (STRs) and private treatment records have been associated with the claims file. The appellant's testimony and lay statements are also of record. Moreover, an opinion regarding the medical question at hand was obtained. In Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit made clear that § 5103A(d) does not apply to DIC claims. Rather, § 5103A(a) applies. Section 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim" and only excuses VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. In this case, opinions discussing the etiological relationship between the Veteran's active service and his death have been obtained and associated with the claims file. The opinions are thorough and consistent with the Veteran's treatment records and adequately address the appellant's contentions. Accordingly, they may be considered in deciding the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA has provided the appellant with the opportunity to submit evidence and arguments in support of her claim. She and her representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a) , § 5103A, or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced as a result of the Board's adjudication of her claim. I. Cause of the Veteran's Death The law provides DIC to the surviving spouse of a veteran who dies from a service-connected disability. See 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012). A service-connected disability is one which was incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). 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) (2012). 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. See 38 C.F.R. § 3.312(b) (2012). 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) (2012). In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). However, DIC benefits may not be awarded if death resulted from the veteran's own willful misconduct. See 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.301(a), (b) (2012). "Willful misconduct" is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences and must be the proximate cause of injury, disease or death. See 38 C.F.R. § 3.1(n)(1), (3) (2012). In order for suicide to constitute willful misconduct, the act of self-destruction must be intentional. See 38 C.F.R. § 3.302 (2012). 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). Id. It is a constant requirement for favorable action that the precipitating mental unsoundness be service connected. Id. Whether a person, at the time of suicide, was so unsound mentally that he or she did not realize the consequence 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. Id. The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. Id. Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness. Id. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction. Id. In this case, the STRs reflect that the Veteran was noted to have anxiety in September 1965. As reported by VA in April 2012, a February 1966 record reflects that he said that he had been nervous for the previous four months without any precipitating stimulus. The examiner entered an impression, in part, of tension state. Upon psychiatric evaluation at time of discharge in August 1976, he was noted to be normal. No chronic psychiatric condition was diagnosed at any time during service. Entries during service show that the Veteran was treated during service for an inguinal hernia in 1958 and for gonorrhea in 1960. He was also seen for hypertension throughout active service. Treatment included various medications to include reserpine, diazide, aprazoline, aldomet, and hygrotin. In October 1977, the RO granted service connection for residuals of hypertension, residuals of inguinal hernia, bilateral hearing loss, and tinnitus. Each of these conditions was rated as noncompensable other than hypertension which was rated as 10 percent disabling. These were the only disabilities for which service connection had been established at the time of his death. Service connection for a psychiatric disorder had never been established, nor had the claim been raised by the Veteran during his lifetime. The record shows that the Veteran died in October 1989. The certificate of death shows that the Veteran died of a gunshot to the chest which was self-inflicted. No other underlying or contributing factors for the cause of death were listed and an autopsy was not performed. In June 2007, the appellant submitted an application for dependency and indemnity compensation. In an August 2007 statement, she said that she felt that the Veteran's death by suicide was due to his military service. She said that he suffered from inservice ringing in the ears, high blood pressure, and depression, flashbacks, nightmares, fears, and anger, that were symptoms of inservice posttraumatic stress disorder (PTSD). She believed that some of these symptoms showed that he had a psychiatric disorder during service. She argued that he started taking medications while in service for his blood pressure and other medical problems which contributed to his abuse, violent behavior, depression, etc., which finally led to his suicide. Post service medical records reflect treatment in 1977-1978 for hypertension and hearing loss. When seen by VA in February 1989, it was noted that the Veteran was taking three medications to control his hypertension. In November 2011, the appellant testified in support of her claims. She reiterated her contentions that the Veteran's death by suicide was related to active service. The transcript is of record and has been reviewed in its entirety. For the first time, she also claimed that his death might be caused by inservice treatment for gonorrhea. (Hrg. tr. at pg. 14.) Subsequently added to the record were additional documents, to include court records showing that protective orders were filed against the Veteran by the appellant. These documents were submitted to show the Veteran's violent nature which the appellant claims shows his psychiatric illness. See, e.g., the attorney representative's December 2011 statement. Records were also submitted apparently claiming that the Veteran experienced stressors during service in Southeast Asia. VA medical opinion report dated in August 2012 reflects that the examiner opined that the Veteran's fatal suicide due to a gunshot wound was less likely than not related to service. For rationale, the examiner noted that the Veteran committed suicide in October 1989. It was also noted that his service-connected disabilities included hypertension, residuals of an inguinal hernia, hearing loss, and tinnitus. The examiner noted that the only "red flag" for the possible psychiatric issue was when the Veteran was noted to be "nervous" in February 1966. He pointed out, however, that the Veteran was not found to have a psychiatric condition at time of retirement examination in August 1976. He noted that the appellant described in her testimony that the Veteran had long term mood and behavior problems in his life which sounded similar to PTSD symptoms. However, he never brought attention to any psychiatric evaluation and treatment before his death. The examiner further pointed out that at the time of his death, the Veteran's psychiatric condition and mental status were not clear and undetermined by the records. Furthermore, there was no literature in the psychiatric and medical communities to support the direct relationship between suicidal behavior and any of his service-connected conditions. Therefore, it was his opinion that it was not at least as likely as not that the Veteran's fatal suicide due to a gunshot wound to the chest was the result of an incident of service origin. In another VA examination conducted a day later, a nurse practitioner noted that the claims file was reviewed. It was also her opinion that the Veteran's suicide by gunshot wound was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected conditions. For rationale, she noted that the STRs showed evidence that the Veteran was treated for hypertension with various medications, to include reserpine, diazide, aprazoline, aldomet, and hygrotin in the military. Research articles showed no link between the medications prescribed for the Veteran's hypertension and development of PTSD. There was no documented evidence of recurrence of the left inguinal hernia after discharge from service. Moreover, the review of medical literature showed no evidence to suggest a link between hypertension, hearing loss and tinnitus, and the development of PTSD. Therefore, it was her opinion that it was less likely than not that the Veteran's service-connected conditions, or medications prescribed, were a principal or contributory cause of his death. Applying the above criteria to the facts of this case, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. The appellant, in essence, claims that the Veteran's death by suicide resulted from undiagnosed psychiatric problems during service or from medication taken for his service-connected conditions, or possibly as a result of inservice gonorrhea. The Board notes that no medical records confirm that the Veteran had an acquired psychiatric disorder during service or at the time of his death. Moreover, there are credible opinions of record, based on review of the claims file, opining that the Veteran's suicide by gunshot wound was not related to an incident of service, to include any medications taken for service-connected conditions. The central issue in this case is whether the Veteran suffered from a mental disorder of service origin that caused him to commit suicide. In other words, does the record reflect that service-connected conditions or medications taken thereto, or that inservice anxiety or nervousness reflected a mental disorder of service origin that caused him to commit suicide? Here, convincing evidence of such has not been submitted. As already noted, medical opinions have been provided that the medications taken for service-connected conditions did not result in development of a psychiatric disorder. Thus, it cannot be said that medications caused him to develop a psychiatric disorder which caused him to commit suicide. Moreover, there is simply no positive evidence in the claims file suggesting that his inservice treatment for gonorrhea in 1960 had anything to do with his death in 1989. The appellant has submitted no competent medical evidence in support of this theory. As to the claim that military service caused him to develop a psychiatric disorder which led to suicide, the Board notes that section 3.302 does provide that the act of suicide "is considered to be evidence of mental unsoundness." 38 C.F.R. § 3.302(b)(2) (2012). However, section 3.302 does not provide that direct service connection must be granted for a mental disorder in all cases of suicide. Rather, section 3.302 defines willful misconduct in suicide as the intent to commit the act and thus serves as a guide as to what constitutes willful misconduct under sections 1110, 1131, 1310 of the statute. 38 U.S.C.A. §§ 1110, 1131, 1310; see Elkins v. Brown, 8 Vet. App. 391, 397 (1995). A finding that a disability is the result of a veteran's willful misconduct creates a legal bar to an allowance of service connection. The fact that there is no legal bar to an allowance of service connection for a disability does not mean that such an allowance must be made in every case in which it is claimed. As with any other claim for service connection, the requirements for establishing service connection must be met before service connection may be allowed. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); Elkins, 8 Vet. App. at 397. Therefore, assuming, without deciding, that the Veteran's suicide was not the result of willful misconduct, the Board will examine whether service connection for a mental disorder is warranted. The record does not include any medical evidence that the Veteran suffered from an acquired psychiatric disorder at any time. The United States Court of Appeals for Veterans Claims (Court) in Elkins held that: "As a prerequisite for a finding of service connection for a mental disability, that disability must be recognized by or analogous to those conditions listed in [the section in the VA Schedule for Rating Disabilities for rating mental disorders] and must either have been incurred in or aggravated by service or must be a psychosis which became manifest within one year after the date of separation from service to a 10 [percent] degree of disability." Elkins, 8 Vet. App. at 397; 38 C.F.R. § 4.130 (2012). In this case, there is no evidence that the Veteran had a psychosis at any time during his life. A formal diagnosis of a psychiatric disorder is contemplated by the rating schedule even for the assignment of a noncompensable rating. 38 C.F.R. § 4.130 (2012) ("A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication."). Moreover, there is no evidence that he had a mental disorder recognized by or analogous to those conditions listed in the section in the VA Schedule for Rating Disabilities for rating mental disorders, i.e., section 4.132. A note, which might explain the cause of the Veteran's actions in taking his life, is unavailable. Since there is no evidence that the Veteran had a mental disorder recognized by or analogous to those conditions listed in section 4.132, there is a clear lack of sufficient evidence to support the claim for service connection for a mental disorder. As such, the Board can only conclude that the preponderance of the evidence is against the claim for service connection for such. Moreover, two medical opinions are of record that are against the claim. The VA examiners opined that it was less likely as not that the Veteran's fatal gunshot wound was the result of an incident of service origin. Thus, the benefit of the doubt doctrine need not be considered. 38 U.S.C.A. § 5107(b) (2012) as amended by Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000); 38 C.F.R. § 3.102 (2012). Under these circumstances, a service-connected mental disorder cannot be considered a contributory cause of the Veteran's death, and therefore the claim for service connection for the cause of the Veteran's death must also be denied. In reaching this decision, the Board has considered the appellant's lay statements in support of her claim. However, the Board notes that where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Since the record does not reflect that the appellant possesses the medical training and expertise necessary to render an opinion as to either the cause or diagnosis of a mental disorder, her lay statements are of no probative value. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). In conclusion, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. The Board is sympathetic to the surviving spouse who tragically lost her husband; nevertheless, the Board may not go beyond the factual evidence presented in this claim to provide a favorable determination. The appellant, of course, may apply to reopen the claim at any time with new and material evidence. As a final note, the Board recognizes that the spouse of a veteran may receive DIC benefits of a deceased veteran who dies and was in receipt of or entitled to receive compensation for a service-connected disability that either was continuously rated totally disabling for a period of ten years or more immediately preceding death, or, if so rated for a lesser period, was so rated continuously for a period of not less than five years from the date of such veteran's discharge or other release from active duty. See 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012). At no time, however, has the appellant contended that the Veteran was entitled to receive compensation at the time of death for a service-connected disability that was continuously rated totally disabling for a period of ten years or more immediately preceding death or hypothetically would have been entitled to such a rating based on evidence in the file. Green v. Brown, 10 Vet. App. 111, 118 (1997). Therefore, the Board need not consider the provisions of 38 U.S.C.A. § 1318 (2012). II. Dependents' Educational Assistance In order to establish entitlement to educational benefits, regulations provide that the applicant must meet certain criteria. The applicant must be the dependent of a veteran who was discharged from service under conditions other than dishonorable, and the veteran must have died as a result of a service-connected disability or had a permanent and total service-connected disability at the time of his or her death. 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012). In the instant case, the Veteran did not die from a service-connected disability, nor was he permanently and totally disabled at the time of his death from a service-connected disability. Consequently, entitlement to educational assistance is denied as a matter of law. Sabonis, supra, (where the law and not the evidence is dispositive of the issue, the claim must be denied because of a lack of entitlement under the law). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DEA under the provisions of 38 U.S.C. Chapter 35 is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs