Citation Nr: 1410112 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-38 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Appellant and Charles Black ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active military service from July 1967 to July 1972 and December 1990 to May 1991. His decorations for active service include a combat infantry badge (CIB). The Veteran died in November 2008. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appellant testified at a travel board hearing before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. FINDINGS OF FACT 1. The Veteran died in November 2008. The cause of death was suicide. 2. At the time of the Veteran's death, the Veteran was service-connected for diabetes mellitus, type II, rated as 20 percent disabling, and noncompensable left ear hearing loss. 3. The Veteran was never diagnosed with an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) or depression, that was etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform a claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, notice should include (1) a statement of the disabilities, 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. 38 U.S.C.A. § 5103(a); Hupp v. Nicholson, 21 Vet. App. 342 (2007). The record shows that the appellant was mailed a letter in March 2009 that provided the appellant with the proper notice. VA's duty to assist the appellant has also been met. Service treatment records, identified VA treatment records and private treatment records, and the Veteran's death certificate have been associated with the claims file. Neither the appellant nor her representative has identified any outstanding medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board notes that a VA medical opinion was not obtained in this case to address whether the Veteran's death was the result of his military service. There is no competent evidence of record indicating that the Veteran had an acquired psychiatric disability as a result of his active service that played a causal role in his death. The appellant has indicated that the Veteran did not receive psychiatric treatment for depression or PTSD. The record in this case is negative for any indication, other than prescriptions for depression medications that were written in conjunction with the Veteran's treatment for a stroke, that the Veteran had an acquired psychiatric disability as a result of his military service. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim and no VA medical opinion is warranted. 38 U.S.C.A. § 5103A(a). See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The Board reiterates that the appellant was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which she presented oral argument in support of her claim. During the hearing, the VLJ identified the issues and asked specific questions directed at identifying whether there was evidence that would help substantiate the appellant's claim. See 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and she has not identified any prejudice in the conduct of the Board hearing. As such, the Board finds that no further action pursuant to Bryant is necessary and the appellant is not prejudiced by a decision at this time. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria 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 death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that the disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when that 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). 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. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The appellant has asserted that the Veteran's suicide was the result of PTSD or depression that was etiologically related to his active service. The appellant has also argued that the Veteran's various disabilities, including hypertension, major depression and anxiety, and stroke residuals, were secondary to his service-connected diabetes, and greatly exacerbated his declining will to live. The Veteran had a claim pending for entitlement to service connection for hearing loss, diabetes due to Agent Orange exposure, and vascular disease secondary to diabetes. The May 2009 adjudication of that claim was completed following the Veteran's death, and service connection for left ear hearing loss and diabetes was granted for accrued benefits purposes. Service connection for vascular disease was denied. Therefore, for the purposes of adjudication entitlement to service connection for cause of death, the Veteran is considered to have been service-connected for noncompensable left ear hearing loss, and diabetes, evaluated as 20 percent disabling. According to the death certificate, the Veteran died of a gunshot wound to the abdomen. The cause of death was noted to be suicide. A review of the service treatment records shows no treatment for acquired psychiatric disabilities. In July 1972, the Veteran was afforded a separation examination. After a physical examination, the Veteran was evaluated as clinically normal. In December 1990, during the Veteran's second period of active service, the Veteran was prescribed two medications, Procardia and Clonidine. Clonidine is a high blood pressure medication that may be prescribed for anxiety or panic attacks. However, the examiner noted that the Veteran's prescriptions were to keep his hypertension under control. A review of post-service medical evidence of record shows no treatment for or diagnosis of an acquired psychiatric disability. In October 2008, the Veteran was hospitalized for approximately two weeks due to a stroke. The examiner noted that the Veteran had a history of hypertension, diabetes, and had a previous stroke. At discharge, the examiner noted that the Veteran was depressed and prescribed an increased dose of an antidepressant. Appellant also submitted prescriptions for two additional antidepressants that were prescribed in October 2008. Also of record are several statements from the appellant. In her February 2010 notice of disagreement, the appellant noted that the Veteran was award the CIB for serving in Vietnam, which she noted can be used as evidence of combat in order to prove entitlement to service connection for PTSD. In her July 2010 appeal to the Board, the appellant noted that the Veteran had an appointment to see a psychiatrist at the Columbus, Georgia VA hospital because of his stroke. She also noted that when the Veteran returned from Desert Storm he was "a different person," he would wake in the night "shaking and sweating," and he had tried to choke her while he was dreaming. In August 2010 statements, the appellant noted that the Veteran had been married four times before he married her, which she argued showed his inability to maintain close, personal relationships. She also noted that PTSD can cause hypertension, and the Veteran had been diagnosed with hypertension, which caused multiple strokes. She also submitted transcripts of two 60 Minutes television shows, in which the Veteran was interviewed. However, these programs discuss Gulf War Syndrome and the use of pyridostigmine bromide during the Gulf War, and they do not address PTSD or any other psychiatric disabilities. The appellant also submitted several buddy statements. The buddy statements discussed the Veteran's decline in health after his return from the Gulf War. They also noted a change in mood after his strokes. One statement noted that after returning from the Gulf War, the Veteran seemed depressed, sad, and quiet all the time, and noted that the Veteran was worried a lot, mainly about his poor health. Based on the evidence of record, the Board finds that service connection for the Veteran's cause of death is not warranted. All the competent, credible, and probative evidence explains why the Veteran's death is unrelated to active duty service. There is no indication from the medical evidence of record that the Veteran was ever diagnosed with an acquired psychiatric disorder that was etiologically related to his active service. While the appellant might sincerely believe that the Veteran should have been diagnosed with an acquired psychiatric disability related to active duty service and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran had an actual diagnosis of an acquired psychiatric disability falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). While there was evidence that the Veteran was treated for depression, the persuasive and probative evidence of record indicates that this treatment was related to the residuals of his stroke. Thus, there is no evidence of a nexus between his depression and his active duty service. The Board acknowledges the appellant's argument that the Veteran's death was caused by depression, which was in turn caused by his service-connected diabetes and its complications, including hypertension and multiple strokes. However, there is no competent and credible evidence of record that shows that the Veteran's service-connected diabetes caused his hypertension and strokes, or that his hypertension and strokes were otherwise etiologically related to military service. Indeed, the May 2009 rating decision specifically denied service connection for a vascular disease for accrued benefits purposes. For all the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the Veteran's cause of death is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs