Citation Nr: 1337090 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-12 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1967. He died in September 1968. The appellant claims as his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In that decision, the RO denied entitlement to service connection for the cause of the Veteran's death. In January 2012, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) for additional development. For the reasons stated below, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran died in September 1968 due to a self inflicted gunshot wound to the head. 2. At the time of his death, the Veteran was in receipt of service connection for duodenal ulcer, left external otitis, and left eardrum perforation. 3. Service connected duodenal ulcer, left external otitis, or left eardrum perforation did not contribute substantially or materially to the Veteran's death. 4. A psychiatric disorder did not manifest in service, a psychosis did not manifest within a year of service, the Veteran did not have PTSD related to an in-service stressor, and the self inflicted gunshot wound to the head that caused the Veteran's death was not related to a psychiatric disorder incurred in service or alcoholism resulting from such a disorder. CONCLUSIONS OF LAW 1. A service connected disability was not a contributory cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.312 (2013). 2. The self inflicted gunshot wound to the head that caused the Veteran's death was not due to a disability incurred in or aggravated by service, to include a psychiatric disorder. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, 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). The United States Court of Appeals for Veterans Claims (Court) has also held that 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 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 a September 2006 pre-rating letter, the RO notified the appellant of the evidence needed to substantiate the claim for entitlement to service connection for the cause of the Veteran's death. The RO wrote that to establish entitlement to the benefit sought, the evidence must show that the Veteran died from a service-connected disease or injury. The RO also wrote: "Provide medical evidence that will show a reasonable probability that the condition that contributed to the Veteran's death was caused by injury or disease that began during service." These statements did not precisely comply with Hupp, however, any error in this regard is harmless because the appellant had had actual knowledge of what was needed to establish entitlement to service connection for the cause of the Veteran's death. See George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). As discussed below, the appellant's primary argument on this appeal is that the Veteran's suicide was due to a psychiatric disorder incurred in service or to alcoholism related to such a disorder. This is the only plausible theory of entitlement raised by the evidence of record and because the appellant has made this specific contention, she had actual knowledge of what she had to show to establish entitlement. The September 2006 letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that the appellant would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims 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). In any event, the September 2006 letter complied with this requirement. The Veteran's status as a veteran was substantiated during his lifetime. The appellant was notified of all other elements of the Dingess notice, including the disability rating and effective date elements, in an October 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records. In its January 2012 remand, the Board instructed the RO/AMC to request post service treatment records relating to psychiatric treatment received at the Erie, Pennsylvania VA Hospital from May 1967 to September 1968 and, to obtain the Veteran's personnel records, and to obtain a VA medical opinion. The RO/AMC requested the specified records and received a response from the hospital indicating that there were no records on file. The RO/AMC was therefore not required to take additional action with regard to these records pursuant to its duty to assist. 38 C.F.R. § 3.159(c)(2) (requiring VA to continue to request Federal records unless it concludes that records sought do not exist or that further efforts to obtain them would be futile). The RO/AMC also notified the appellant of its inability to obtain these records in an April 2012 letter. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1). In addition, the RO/AMC obtained the personnel records and the medical opinion. For the reasons stated below, the opinion was adequate. The RO/AMC therefore complied with its duty to assist and the Board's remand instructions. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for the cause of the Veteran's death is thus ready to be considered on the merits. Analysis 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; 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service connected disability apply. 38 U.S.C.A. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2002) (requiring PTSD diagnoses to conform to the DSM-IV). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Psychoses are listed as chronic diseases in the statute and regulation and the Board will therefore consider the provisions of 38 C.F.R. § 3.303(b) in this regard. In addition, for veterans such as the Veteran with 90 days or more of active service during a war period, chronic diseases including psychoses are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In a DIC claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). In this case, the appellant does not contend, and the evidence does not reflect, that a service connected disability caused or contributed to the Veteran's death. Rather, she claims that the Veteran's suicide was the result of a psychiatric disorder that was incurred in service, to include PTSD. The Board finds this theory plausible, in that the Veteran's suicide was a little more than a year after service, he served in Vietnam, while hospitalized shortly after service for an ulcer progress notes indicated that he was somewhat apprehensive emotionally with an immature personality with "odd" behavior, and excessive alcohol intake. If the evidence were to show that the Veteran had a psychiatric disorder that was related to service and/or alcoholism related to the psychiatric disorder, and that the psychiatric disorder and/or alcoholism caused the Veteran to commit suicide, entitlement to service connection for the cause of the death would be warranted. See Allen v. Principi, 237 F.3d 1368, 1379 (Fed. Cir. 2001) (where alcoholism is secondary to and a manifestation of an acquired psychiatric disorder, and alcoholism results in death, it is not to be considered as misconduct, but, rather, may be service connected). For the following reasons, however, the preponderance of the evidence is against this theory. The STRs do not contain any notations regarding psychiatric complaints, symptoms, treatment, or diagnoses, and the May 1967 separation examination report indicated a normal psychiatric examination, with no defects noted in the report. Post-service VA treatment records which have been associated with the claims folder show that in September 1967, approximately 4 months following the Veteran's discharge, he was admitted to the Erie, Pennsylvania VA Hospital for 21 days where he was diagnosed with and treated for a duodenal ulcer. The associated VA treatment records show the Veteran's reports that he "drinks too much" and that he was drinking on the day of his admission despite feelings of nausea all day. He dated the onset of the abdominal pains associated with his diagnosed duodenal ulcer during his active service in approximately December 1966 and there was a definite indication that such pain was provoked by excessive intake of alcoholic beverages. VA inpatient progress notes show that the Veteran denied any family history of significant mental disease and he denied family or marital troubles. He also denied suffering any serious injuries during service but he did report engaging in heavy alcohol consumption for "the past couple of years." The Veteran was reluctant to report the exact amount of alcoholic beverages consumed, however, he later reported that he drank about 5 draft beers and a few shots of whiskey every day since his May 1967 discharge. VA inpatient progress notes described the Veteran as somewhat apprehensive emotionally with an immature personality as confirmed by his behavior during hospitalization. Following initial improvement in his condition, he nearly every day requested a pass for a couple of days with different "phony emergency justifications" each time. He was frequently advised of proper procedures to obtain a pass to leave the hospital and he often left without permission. On one occasion, the Veteran's behavior was described as "odd." Despite knowing that he had already received his medication, he denied having received it and requested a second dose. Upon questioning, he stated that he wanted to "alarm" the nurse. On another occasion, he was observed crying in a lounge area when he stated, "I really wish I could die. You do not know how it feels to want to die, do you?" He further stated that he wanted to "get out of here" and to "run until he fell over." He reported running 13 miles during service before he fell over but he was "caught and put in the shower." Later that evening, the Veteran appeared at the nurses' station talking about financial troubles. His breath smelled of alcohol and he admitted that he had been drinking. Prior to being discharged from the Erie VA hospital, the Veteran denied any complaints despite medical findings that his duodenal ulcer had not improved since testing was performed 2 weeks prior. It was speculated that the Veteran's lack of complaints were due to his wanting to go out on pass or wanting to go home for good. His physician stated that he lacked a sense of responsibility and had poor understanding and judgment concerning his personal and family problems which were not specified. The Veteran was ultimately discharged from inpatient treatment due a physician's finding that he would not benefit from further hospitalization because he would likely leave the hospital against medical advice at the first opportunity given. As noted in the Board's remand, the appellant indicated in her August 2006 claim and her April 2008 Substantive Appeal (VA Form 9), that immediately following the Veteran's discharge, he received VA psychiatric treatment at the VA Hospital in Erie, Pennsylvania. As indicated above, however, these records, if they existed, are not available. Lay witnesses are competent to report contemporaneous diagnoses, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and the Board finds the appellant's general report that the Veteran received psychiatric treatment to be credible. Moreover, although the Veteran did not receive any decorations indicating combat, his personnel records do contain a document titled, "Combat History-Expeditions-Awards Records" which indicates that the Veteran, whose military occupation specialty was Administration Man with related civilian occupation of Chief Clerk, was associated with multiple combat operations. The Board finds, however, that even if the Veteran underwent psychiatric treatment shortly after service and participated in combat, the evidence is insufficient to warrant the conclusion that the Veteran had a psychiatric disorder related to service or PTSD related to an in-service stressor that caused either his alcoholism or suicide. The above evidence does not reflect that the Veteran had a psychiatric disorder in service or a psychosis during service or within the one year presumptive period, or that he had PTSD related to an in-service stressor. Moreover, although there were behavioral abnormalities noted, there was no indication that they were either manifestations of a psychiatric disorder or related to service or a specific in-service stressor, either directly or due to alcoholism caused by service. There is also no evidence that the Veteran's suicide was related to any of the above. Given the above insufficiencies in the evidence, the Board sought a medical opinion. The Board requested that a psychiatrist or psychologist first opine as to whether the Veteran suffered from an acquired psychiatric disorder with an onset during service or the onset of psychosis within one year of service or if a psychiatric disorder was otherwise related to service. The Board instructed that the examiner consider the appellant's lay statements indicating that the Veteran developed a terrible drinking problem following discharge which was his attempt to self medicate a nervous condition due to events he had experienced in Vietnam. Then, if the examiner answered in the affirmative, he was to opine as to whether the psychiatric disorder was a cause of the Veteran's death from the self inflicted gunshot wound. In May 2012, a VA psychologist reviewed the claims file and found that there was no evidence of record to substantiate that the Veteran suffered from an acquired psychiatric disorder to include PTSD with an onset in service, psychosis within a year of service, and that it was less likely as not that the Veteran suffered from such a disorder. He noted the lack of psychiatric disorder or psychosis in the treatment records, the post service records indicating alcoholism, and the fact that no emotional issues were noted at the time of admission. The psychologist noted that one nurse noted that the Veteran was despondent but did not give a reason for these feelings, and it was not possible to state why. The psychologist also referenced the note indicating that the Veteran report troubling financial concerns and the statement of the appellant that she though his alcoholism was an attempt to self medicate a nervous condition, but found that there was no evidence to substantiate the appellant's contention. The Board finds that the psychologist's opinion is entitled to at least some probative weight. He reviewed the evidence of record including those specifically referred to by the Board in its remand and concluded it was not likely that the Veteran had a psychiatric disorder related to service. He thus did not reach the question whether a psychiatric disorder caused the death from self inflicted gunshot wound. The psychologist's opinion is given probative weight because he reviewed the claims file, considered the evidence specifically referenced by the Board, and based his conclusion on an accurate characterization of the evidence. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board has also considered the appellant's lay statements. As noted, she is competent to testify as to her observations, including of a contemporaneous diagnosis or the fact that the Veteran received psychiatric treatment. Notably, the appellant did not indicate that the Veteran was specifically diagnosed with a psychosis or a specific psychiatric disorder. As to her theory that the Veteran self medicated with alcohol due to a psychiatric disorder that resulted from his Vietnam service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to alcoholism caused by psychiatric disorder caused by Vietnam service is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. The Court has specifically held that "[i]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant." Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with (Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board therefore finds that the appellant is not competent to opine on the validity of her theory of causation, specifically, that a psychiatric disorder incurred in service caused the Veteran's alcoholism and/or his suicide. To the extent that the appellant is competent to testify on this issue, the Board finds that the opinion of the trained health care professional based on his review of the evidence of record is of greater probative weight than the appellant's lay assertions in this regard. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. In so finding, the Board is sympathetic to the appellant. The Board acknowledges the tragedy of the suicide of this Veteran who served in country honorably in difficult circumstances in Vietnam and the plausibility of the theory that this suicide resulted directly or indirectly from a psychiatric disorder incurred in service. The Board is bound, however, by VA's laws and regulations. 38 U.S.C.A. §§ 503, 7104(c) (West 2002); 38 C.F.R. §§ 19.5, 20.101(a) (2013). As the preponderance of the evidence is against the claim based on the Board's applications of the laws and regulations relating to service connection for the cause of death to the facts of this case, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs