Citation Nr: 1341283	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  10-39 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESSES AT HEARING ON APPEAL

Appellant and C. P.




ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel


INTRODUCTION

The Veteran served on active duty from July 2003 to June 2008.  The Veteran died in September 2008.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The appellant testified at a Board hearing before the undersigned Veterans Law Judge in June 2013.  A transcript of the hearing is associated with the claims folder.


FINDINGS OF FACT

1.  The Veteran died in September 2008; his death was the result of suicide by hanging. 

2.  Mental unsoundness that began during the Veteran's period of military service likely led to his suicide.



CONCLUSION OF LAW

With resolution of reasonable doubt in the appellant's favor, service connection for the cause of the Veteran's death is warranted.  38 U.S.C.A. §§ 1110, 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.302, 3.303, 3.312 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant asserts that the cause of the Veteran's death was due to posttraumatic stress disorder (PTSD), adjustment disorder, or depression related to experiences during two tours of duty in Iraq. 

A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  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.  The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. § 3.312(b).

Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury.  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).

Service connection was not in effect for any disability during the Veteran's lifetime.

The Certificate of Death reflects that the Veteran's immediate cause of death in September 2008 was asphyxia by hanging.  

Service treatment records are silent for complaints, evaluation, diagnosis or treatment for a psychiatric disorder or any mental unsoundness.  Nevertheless, service personnel records document tours in Iraq from February to September 2006 and from August 2007 to February 2008.  

An August 31, 2008 emergency care and treatment record from a Naval Medical Center reflects that the Veteran presented with concerns of suicidal and homicidal ideation.  He stated that earlier in the evening he got into an argument with his wife and became very angry.  He then blacked out.  He looked at his wife and knew something bad had happened.  He wanted to kill himself, cutting his own throat.  His wife took the knife and razor blades from him.  He was very concerned about his anger issues and whether he would hurt his baby, his wife, or himself.  He denied any history of psychiatric illness or mental health counseling. 

During a psychiatric evaluation he described difficulty controlling his anger and becoming enraged during a conversation about dinner.  He could not remember anything that occurred during the time period between the initial argument and the end of his rage.  After the argument, he had thoughts of killing himself using knives or razor blades or driving off a cliff.  He stated that he had an outlet to express his anger during military service, but did not have such an outlet anymore.  He identified current stressors as being unemployed and difficulty adjusting to his daughter's teething because he did not know when she was simply teething or upset about something.  The Veteran endorsed years of childhood physical abuse and reported that he was discharged from military service after failing to meet weight standards.  The psychiatrist noted that discussion with the Veteran's wife confirmed his story.  However, she stated that the Veteran became physically violent during the fight and choked her, hit her, and pulled her into a bathtub with water in it.     

The examiner noted that psychiatric review of systems was significant for anhedonia, guilt, decreased energy, poor concentration growing worse for months, and suicidal ideation in the context of guilt about his behavior toward his wife.  Psychiatric review of systems revealed no signs or symptoms of PTSD.  The diagnosis was adjustment disorder with disturbance of emotions and conduct; depression not otherwise specified (NOS).  He was discharged to the County Sheriff's Department where he would be in a padded safe cell.

Medical records from the County Sheriff's Department dated from September 1-3, 2008 reflect that the Veteran was monitored closely for suicidal behavior.

A narrative report completed in October 2008 by a medical examiner investigator included a description of the scene on the date of the Veteran's September 2008 death and events prior to his death.  Approximately two weeks prior to his death, the Veteran and his wife were involved in a domestic violence dispute, after which the Veteran's wife and daughter left and went out of town to stay with family.  The appellant had not spoken with the Veteran for nearly two weeks and was unable to reach him by telephone.  She contacted the apartment complex manager to request a welfare check, and the manager discovered the Veteran apparently deceased with a rope around his neck.  

The investigator also conducted a telephone interview with the appellant on the date of the Veteran's death.  The appellant indicated that she and the Veteran were high school sweethearts and dated for several years before getting married in February 2008.  She related that after the Veteran's first deployment to Iraq, he "was a little depressed about what he had seen while in the war.  He often would just lie in bed and ask her to hold on to him."  Upon his return from his second deployment, the Veteran was "different."  The appellant described him as being short-tempered, impatient with their infant daughter, very distant, and his depression returned.  He would make mention of wanting to hurt himself and one time took all of the knives and placed them into the bathroom and tried to shut the door.  The appellant stated that over the last year, following two separate deployments to Iraq, the Veteran's depression had increased and he had begun expressing suicidal ideations.

In support of the claim, the appellant submitted an October 2008 newspaper article, which suggested that the Veteran "took his own life after suffering, it appears, from [PTSD]."  She also submitted lay statements from family and friends detailing their observations of depression and behavior changes, including physical abuse against the appellant, since the Veteran returned from Iraq.

With resolution of reasonable doubt in the appellant's favor, the Board concludes that the competent and persuasive evidence of record establishes that the Veteran likely had a mental disability that began during military service.  An adjustment disorder and depression were diagnosed just two weeks prior to his death, which was just 2 months after his separation from service.  With reasonable inferences based on the evidence described above, it may be concluded that his mental unsoundness was the principal cause of his death and that this disability was traceable to his period of military service.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  The provisions of 38 C.F.R. § 3.302 specifically note that the act of suicide is considered evidence of mental unsoundness, and that reasonable doubt should be resolved in favor of finding service connection.  

Here, the Board finds credible the appellant's statements regarding the onset and continuity of depressive and other symptoms after the Veteran's first deployment and observations that he was different, distant, depressed, and made suicidal gestures (such as taking knives into the bathroom and locking the door) after his second deployment.  The Board finds the appellant's statements credible because she described her observations on the date of the Veteran's death in the context of an investigation and her statements in this regard are generally consistent since filing the claim for VA benefits.

In reaching its decision, the Board also has taken into consideration the conclusions provided by the VA reviewing psychiatrists in October 2009 and November 2010, but finds that the evidence in its entirety is in equipoise as to whether a psychiatric disability was incurred in service and was the primary cause of the Veteran's death.  Accordingly, service connection for the cause of the Veteran's death is warranted.

As a final matter, the Board finds that the appellant is the Veteran's surviving spouse because she was married to the Veteran at the time of his death; she lived continuously with the Veteran from the date of marriage to the date of the Veteran's death except for the two-week separation, which was due to the Veteran's misconduct (spousal abuse) without fault of the appellant; and there is no evidence that the appellant has remarried since the death of the Veteran.  See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b) (defining "surviving spouse").


ORDER

Service connection for the cause of the Veteran's death is granted.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs