Citation Nr: 1513608 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 13-08 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Elias, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1959 to January 1963. He died in November 1990. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction was subsequently returned to the RO in New Orleans, Louisiana. The Appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2013. A transcript is of record. The Board remanded this claim in April 2014 for further development. It now returns for appellate review. FINDINGS OF FACT 1. The Veteran died in November 1990. 2. The Veteran's acquired psychiatric disorders were related to his service. 3. The Veteran's acquired psychiatric disorders were the cause of the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are satisfied. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.301, 3.302, 3.303, 3.304, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the Veteran's suicide was due to an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), related to his military service. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for disability and indemnity compensation (DIC) benefits for the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5(a), 3.312 (2014). In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially and materially to the veteran's death. 38 C.F.R. § 3.312. Entitlement to DIC benefits for the cause of a veteran's death may be established by showing that a disability for which service connection was in effect during the veteran's lifetime was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran's death. Id. (observing that "where service connection has not been previously established, the DIC claimant must first establish service connection for the cause of the veteran's death"). Service connection means that a veteran has a current disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). The Board has reviewed all the evidence in the claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must assess the credibility and weight of all evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran died in 1990. The death certificate lists the immediate cause of death as electrocution. It also describes that the electrocution was self-inflicted. The appellant contends that the Veteran's acquired psychiatric disorders caused him to commit suicide. Here, service connection had not been established for any disability at the time of the Veteran's death. Thus, the Board must first determine if he had a disability for which service connection was warranted at the time of his death. A November 1984 private treatment record reflects that the Veteran was diagnosed with major depression. A March 1983 private treatment record reflects that the Veteran was diagnosed with acute generalized anxiety disorder, among other acquired psychiatric disorders. An October 2014 VA opinion reflects that clinician's opinion that it is at least as likely as not that any acquired psychiatric disorder had its clinical onset during the Veteran's active service or was related to any in-service disease, event, or injury. The Board notes that the January 2015 VA opinion reflects that clinician's opinion that it is less likely than not that the Veteran's acquired psychiatric disorders had their clinical onset during service or were related to any in-service disease, event or injury. However, this VA clinician's opinion does not outweigh the October 2014 VA clinician's opinion and, thus, the evidence in at least a state of equipoise regarding a nexus between the Veteran's acquired psychiatric disorders and his active service. Accordingly, resolving reasonable doubt in the Appellant's favor, the Board finds that the Veteran's acquired psychiatric disorders were related to his military service. Next, the Board finds that the Veteran's service-connected acquired psychiatric disorders caused or contributed to his death. In this regard, the October 2014 VA opinion reflects that clinician's opinion that "it is at least as likely as not ... that the Veteran's death by suicide was the result of mental unsoundness associated with his service-connected psychiatric disorder." The Board notes that compensation shall not be paid if the disability was the result of a Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2014); 38 C.F.R. § 3.301(c). In order for suicide to constitute willful misconduct, the act of self-destruction must be intentional. 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 is a constant requirement for favorable action that the precipitating mental unsoundness be service connected. 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. The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction. 38 C.F.R. § 3.302. Here, the Veteran had a long history of psychiatric disorders. In addition, there is no evidence of any reasonably adequate motive for suicide. Finally, the October 2014 VA opinion reflects the clinician's opinion that the Veteran was mentally unsound. Accordingly, resolving reasonable doubt in the Appellant's favor, service connection for the cause of the Veteran's death is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs