Citation Nr: 1333487 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-20 506 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of a veteran. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran (the Veteran), who had active service from January 1989 to October 1998. The Veteran died in December 2008. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the RO in Denver, Colorado. In April 2013, the appellant presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. At the time of the Veteran's death, service connection was in effect for PTSD, a low back disability, headaches, tinnitus, a chest disability, a right ear disability, and a disability manifested by fatigue. 3. A service-connected disability did not cause or contribute substantially or materially to the cause of the Veteran's death. 4. The trauma that caused the Veteran's death is not related to service. CONCLUSION OF LAW The cause of the Veteran's death was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1312, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking DIC benefits based on her assertion that the cause of the Veteran's death is related to a service-connected disability and therefore qualifies as service connected. The Veteran's death certificate lists the official cause of death as trauma and the mechanism of injury as assault. The appellant asserts that the Veteran's service-connected posttraumatic stress disorder (PTSD) caused him to initiate or engage in an altercation that resulted in a head trauma which ultimately led to his death. DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2013). A disability may be service connected if it results from an injury or disease incurred in, or aggravated by, military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that a disorder incurred in service neither caused nor contributed substantially or materially to the cause the Veteran's death. Regarding direct causation, the death certificate establishes the principal cause of death as trauma due to an assault. At the time of death, service connection was in effect for PTSD, a low back disability, headaches, tinnitus, a chest disability, a right ear disability, and a disability manifested by fatigue. It is not asserted that any service-connected disability was the principal cause of death. The appellant asserts that the Veteran's PTSD was a contributory cause of death, in that it caused the Veteran to take actions which brought about the assault that ultimately caused his death. The Affidavit Of Probable Cause For Arrest Warrant prepared following the Veteran's death presents several accounts of the events surrounding the Veteran's death. The first comes from the Veteran's brother, who was present at the time of the altercation which resulted in the Veteran's death. The Veteran's brother informed the police that he and the Veteran were in the Veteran's truck and had driven in the wrong direction down what was apparently a one-way street. When the truck reached an intersection, another vehicle turned to go down the street they were on. Both vehicles (driving in opposing directions) were forced to stop. One of the occupants of the other vehicle got out and directed an expletive at the Veteran. The Veteran then got out of the truck, at which point individuals from the other vehicle rushed the Veteran and used a baseball bat to beat him. The Veteran's brother also got out of the truck and the individuals from the other car beat him up as well. According to the girlfriend of one of the occupants of the other vehicle, who related the account to her, the Veteran approached the car of her boyfriend and punched him while he was sitting in the car. Her boyfriend then exited the car and that is when the fight happened. She did not know whether a weapon was used. Accounts were also received from other individuals who participated in or witnessed the altercation. These accounts were similar to each other and noted that the vehicles almost got into an accident because the Veteran's truck was going the wrong way on a one-way street. One of the occupants of the other vehicle got out of the front passenger seat and yelled at the occupants of the truck. The driver of the truck got out and ran towards the other vehicle and slammed the door of the other vehicle. Then, the individuals "began exchanging punches." Another individual got out of the other vehicle and hit the Veteran one time and he dropped. It was not known whether he used a weapon (baseball bat). At this point, the Veteran's brother exited the truck and came towards them. One of the occupants of the other vehicle punched him one time causing him to fall. The Veteran was still lying on the ground next to the other vehicle when one of the occupants of the other vehicle began kicking him in the face and head area with steel-toed boots. The appellant does not contend that she was present during the altercation. The hospital report reveals that the Veteran was comatose when he was admitted to the hospital, and he died in the hospital less than a month later. There is a conflict in the testimony regarding whether the Veteran initiated the physical altercation or whether one of the occupants of the other vehicle did. This is a significant determination as the account presented by the Veteran's brother does not directly implicate the Veteran's PTSD in his death. While it is certainly debatable whether it is wise to exit one's vehicle to resolve a traffic dispute, it is not necessarily an unreasonable act, nor is it suggestive of psychological impairment. In the version of events presented by the Veteran's brother, the Veteran was an unarmed victim of a physical assault with a deadly weapon, and that assault was the proximate cause of his death. The accounts of the other witnesses are essentially consistent with the account of the Veteran's brother. Unlike the account of the girlfriend of one of the occupants of the other vehicle, they do not suggest that the Veteran initiated the physical altercation. In contrast to these accounts, the version of events presented by the girlfriend of one of the occupants of the other vehicle suggests that the Veteran initiated the physical altercation, which had previously been a verbal traffic dispute. While acceptance of this version of events is far from determinative as to entitlement to service connection for the cause of death, the Board finds this version of events to be less reliable than the version presented by the Veteran's brother. In rendering a decision on appeal the Board must 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, 1 Vet. App. at 57. 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"). In attaching greater weight to the account of the Veteran's brother, the Board notes that the Veteran's brother was actually present at the scene and was a witness to the incident. There is no doubt that the girlfriend of one of the occupants of the other vehicle is competent to relate what her boyfriend told her; however, she does not contend that she actually witnessed any of these events. As noted in Flynn v. Brown, 6 Vet. App. 500, 503 (1994), the VA benefits claims system does not include such adversarial concepts as a hearsay evidence exclusion. See also Manio v. Derwinski, 1 Vet. App. 140 (1991). Thus, the Board has not rejected her statements simply on the basis that they constitute hearsay evidence. Rather, the Board attaches diminished weight to her second-hand account in comparison to the account of a first-hand witness. The Board also notes that the account related to the girlfriend of the occupant of the other vehicle tends to be exculpatory of the occupant, as it places the responsibility for starting the physical altercation on the Veteran rather than on him. In contrast, the account of the Veteran's brother, while tending to relieve the Veteran of this responsibility, is not personally exculpatory of the Veteran's brother, as, in no version of events did he bear any responsibility for initiating the conflict. For these reasons, the Board finds the account of the Veteran's brother to be more accurate or credible than the account of the girlfriend of one of the occupants of the other vehicle. As noted above, the other witnesses interviewed did not identify who initiated the physical altercation and therefore their accounts do not conflict with the account of the Veteran's brother. The appellant asserts that the Veteran was subject to periods of combativeness, and that this was related to his PTSD. The Board finds that, even if it were determined that the Veteran initiated the physical altercation stemming from a traffic dispute, and that he would not have done so but for his PTSD, this finding would not be determinative of entitlement to service connection. In fact, the initiation of such a physical assault would constitute willful misconduct, which is defined as an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The Board acknowledges that the provisions governing willful misconduct are framed in terms of acts committed in service. However, the reasons for the exclusion of acts of willful misconduct from direct service connection are equally applicable to service connection for the cause of death. There is no arguable reason to treat these similar provisions differently. The Board's construction treats similar provisions governing similar subject matter in a consistent manner. The Board construes the prohibition of acts of willful misconduct as applicable to cause of death claims. Thus, even if it were found that the Veteran initiated the physical altercation that lead to his death, by physically assaulting another individual in what had up until that point been a verbal dispute, the Veteran would have taken a conscious action that he knew or should have known was legally prohibited and wrong, and that could reasonably have lead to serious injury or death. Such action would amount to a wanton and reckless disregard of the probable consequences. 38 C.F.R. § 3.1(n)(1). The Board acknowledges that the symptomatology associated with PTSD includes such symptoms as grossly inappropriate behavior and persistent danger of hurting self or others, and that the Veteran was receiving compensation at the 100 percent level for PTSD. However, there is a fundamental distinction between providing compensation for symptoms of a psychiatric disability and an attempt to establish service connection for the results of such symptoms. VA law does not prohibit paying compensation for a disability that may result in acts of willful misconduct, but it specifically prohibits establishing service connection for disabilities that are themselves a result of willful misconduct. The Board has also considered the potential applicability of provisions addressing insanity and mental unsoundness. Under 38 C.F.R. § 3.12(b) a discharge because of an act of willful misconduct will not be a bar to service connection if it is found that the person was insane at the time of committing the offense causing the discharge. The Board acknowledges that this provision is not directly applicable in this case; however, it establishes a precedent in the regulations to excuse acts of willful misconduct upon a finding of insanity. A similar provision is 38 C.F.R. § 3.302, which addresses the effect of mental unsoundness in suicide. While the Board acknowledges a February 2004 finding from a VA staff psychiatrist that the Veteran has a history of suicide attempts, there is no assertion on the appellant's part, or other evidence indicating that the Veteran's behavior during the incident in question constitutes a suicide attempt within the meaning of 38 C.F.R. § 3.302. Nevertheless, 38 C.F.R. § 3.302(a)(2) specifically provides that 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 would appear that under VA law, the terms "unsound mind" and insane are essentially equivalent. VA regulations provide that an insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (became antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a) (2013). In May 1997, the VA General Counsel discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). VAOPGCPREC 20-97 (May 22, 1997). While this regulation is not directly applicable, the reasoning of the General Counsel is pertinent. The opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." In particular, the term "become antisocial" in 38 C.F.R. § 3.354(a) refers to the development of behavior which is hostile or harmful to others in a manner which deviates sharply from the social norm and which is not attributable to a personality disorder. In order to be considered insane under the departure-from-accepted-standards criteria of section 3.354(a), a person must both deviate from the accepted standards of the community to which he or she belongs by birth and education and be unable to adjust to the social customs of the community in which he or she resides. The opinion also held that behavior which was generally attributable to a substance-abuse disorder did not exemplify the severe deviation from the social norm or the gross nature of conduct which was generally considered to fall within the scope of the term insanity and therefore did not constitute insane behavior. Generally, the predicate for insane behavior within the meaning of VA law and regulations is a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import and consequences of his acts, such that he is a danger to himself or others. In effect, he is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. Here, the Board finds it significant that no physician or medical professional has stated that the Veteran's psychiatric problems were of such severity as to have rendered him insane. With respect to the VA General Counsel's reference to a finding of incompetency, the Board notes that a May 2003 VA psychiatric examination resulted in a finding that the Veteran was competent for VA purposes. Moreover, the evidence of record does not show that the Veteran lacked the mental capacity at the time of the assault to understand the nature of his actions. Although the Veteran was psychologically impaired due to a service-connected disability at the time of his death, the evidence does not suggest that he was mentally unsound or insane. The United States Court of Appeals for Veterans Claims (Veterans Court) has held that mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). The burden is on the appellant to submit competent medical evidence that the Veteran was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). Here, the appellant has not done so. Indeed, the appellant has not asserted that the Veteran was insane at the time of the incident that resulted in death, and the evidence does not establish insanity or mental unsoundness. In short, even if it were acknowledged and accepted that the Veteran initiated the physical altercation that lead to his death, such action would constitute willful misconduct which would preclude service connection for the cause of death. The appellant has also argued that the Veteran's abuse of alcohol played a role in the events leading up to his death, and that this in turn is related to his PTSD. The Board acknowledges that a November 16, 2008 hospital report following the incident shows that the Veteran's serum alcohol level was 217 on presentation. The simple drinking of alcoholic beverage is not of itself willful misconduct; however, if, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). Here, setting aside the question of whether the act of driving under the influence of alcohol constitutes willful misconduct, the Veteran had reason to know that alcohol increased his tendency to engage in violent behavior. The report of VA examination in December 2002 includes the Veteran's account that, he avoids drinking alcohol because it makes him more irritable and "more likely to be in a fight." In April 2003, the Veteran was advised by a VA physician that consumption of alcohol, even in modest amounts, can be very disinhibiting, and that with an anger management problem, that can be "a bad thing." In an October 2004 counseling note, the Veteran described having been feeling good for several weeks when a neighbor encouraged him to drink. The Veteran drank two beers and then physically attacked the neighbor and had to be stopped by a family member. Thus, independent of the Board's finding that, if it were found to be true that the Veteran initiated the physical altercation, such action would be considered willful misconduct, the Board also finds that, to the extent the Veteran's abuse of alcohol contributed to the altercation that resulted in his death, the conscious act of using alcohol to excess with direct knowledge of its effect on his temper constitutes deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). The Board has discussed several theories of entitlement in the decision above, as well as the applicability of various provisions of VA law. However, to summarize the Board's actual findings of fact in this case, the evidence deemed most credible by the Board indicates that, while the Veteran left his vehicle in the midst of a traffic dispute, he did not initiate the physical altercation that led to his death. The proximate cause of his death was a physical assault by another individual using a deadly weapon. It cannot be said that the Veteran's PTSD contributed substantially or materially to the cause of death because even if his PTSD led to him being more apt to fight with others, but for the fact that another individual hit him in the head with a baseball bat, the fight would not have resulted in his death. In other words, it was a completely nonservice-connected event - the other individual hitting him in the head - that led to the natural sequence of events resulting in injury and then death. Therefore, service connection for the cause of death is not warranted. Although the Board is sympathetic to the plight of the appellant, the Board must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995). Unfortunately, the totality of the circumstances in this case clearly indicate the actions of another individual was the cause of the sequence of events that followed, including the Veteran's death, and this had absolutely no relationship to his service-connected disability. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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), 3.159, 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 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. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the appellant submitted her application for DIC in April 2009. She was sent a letter in July 2009 which advised her of the information and evidence necessary to substantiate service connection for the cause of the Veteran's death. That letter also advised her of the evidence specific to cause of death claims as well as how disability ratings and effective dates were assigned in the event of a successful claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the July 2009 letter was sent to the appellant prior to the initial adjudication of the claim in September 2009, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the appellant in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the appellant's written assertions and personal hearing testimony. The Board notes that 38 U.S.C.A. § 5103A(d) concerning obtaining VA medical examination or medical opinion is limited to claims for "disability compensation." See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). In DeLaRosa at 1322, n.1, the Federal Circuit explained that disability compensation is defined as a "monthly payment made by VA to a veteran 'if the veteran is disabled as a result of a personal injury or disease...while in active service if the injury or disease was incurred or aggravated in line of duty.'" Therefore, by definition, § 5103A(d) does not pertain to a DIC claim. Nevertheless, in a DIC case, as part of the duty to assist, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008). According to the Federal Circuit, this requirement obligates VA to assess whether it is necessary to obtain a medical opinion in order to substantiate the appellant's claim. Id. VA is only excused from making reasonable efforts to provide assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). In this case, there is no question of a medical nature that could reasonably be expected to aid in deciding the claim. The Board's decision in this case involves a determination of fact as to which of the witnesses' accounts is most reliable. As discussed above, the question of the Veteran's insanity or mental unsoundness has not been asserted and is not reasonably raised by the evidence. ORDER DIC based on service connection for the cause of death of a veteran is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs