Citation Nr: 1523247 Decision Date: 06/02/15 Archive Date: 06/16/15 DOCKET NO. 13-27 405 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The appellant and the Veteran's brother ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to December 1974; he died in June 2011. The appellant is the Veteran's widow. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In July 2013, the appellant was afforded a hearing before a hearing officer at the RO and in June 2014, the appellant was afforded a hearing before the undersigned. Transcripts of the hearings are of record. During the June 2014 hearing, the appellant made clear that she was appealing only the issue of service connection for the cause of death. Therefore, no other issue is on appeal before the Board. FINDINGS OF FACT 1. The Veteran died in June 2011. 2. The Veteran's posttraumatic stress disorder (PTSD) was related to his service. 3. The Veteran's PTSD was 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 met. 38 U.S.C.A. §§ 1110, 1310, 5107 (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 Legal Criteria 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 (West 2014); 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"). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed .Cir. 2009). See also 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). Establishing service connection for PTSD specifically 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 actually occurred. 38 C.F.R. § 3.304(f) (2014). Section 4.125(a) requires the diagnosis to conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10 Vet. App. 128, 137-138 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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) (2014). 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 (2014). Analysis The Veteran died in June 2011. The death certificate lists the immediate cause of death as suicide due to the combined sedative effects of bupropion, diazepam, and zolpidem. The appellant contends that the Veteran's PTSD based on combat service, which was not diagnosed prior to his death, caused him to commit suicide and that his PTSD was related to his military service. 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. The record shows that the Veteran served in Vietnam as an air traffic controller specialist and was awarded the Air Medal for Heroism with "V" device for engaging in aerial flight in connection with military operations against a hostile force. As such, this combat citation will be accepted as conclusive evidence of an in-service stressor. Private treatment records from Dr. V.M. dated from March 2008 to June 2010 show that the Veteran was treated for a mood disorder and major depressive disorder. After the Veteran's death, in a letter dated July 2011, the Veteran's private psychiatrist, Dr. C.G., stated that he treated the Veteran from June 2002 to July 2005 and from June 2010 to June 2011 for recurrent and moderate major depression. He stated that the Veteran's depression was very difficult to treat and he had a difficult time understanding the Veteran and why his work caused him stress. Following his death, his wife discovered that the Veteran was discharged from the Army "with valor" and he received an Air Medal for Heroism that he never told anyone about. Dr. C.G. stated that once he learned of the circumstances of the Veteran's service, it became clear why he preferred to be sent by work to remote locations because he identified with his service and opined that his suicide was as likely as not related to PTSD due to his service in Vietnam or, at the very least, a contributing factor in his suicide. In an April 2013 letter, the Veteran's first wife stated that she and the Veteran were married in March 1972, which was during his active service prior to departing for Vietnam in May 1972. During his service in Vietnam, he wrote to her about how he came under gun fire in the control tower and had to direct air traffic from the floor of the tower. His unit was often attacked and the enemy was hard to locate and stop. He also volunteered as the door gunner in a helicopter and his machine gun jammed while under heavy fire. She stated that she noticed the Veteran had changed during his service. The first time she noticed this change was during a visit just before Christmas 1972 when he would not go into crowded stores without becoming "jumpy" and he had problems sleeping. He also exhibited nightmares, numbness of emotions, and avoidance. He went to a mental health clinic with the Army only for a few appointments. He began having anger outbursts, irritability, depression, hypervigilance, loss of interest, hopelessness, thoughts of suicide and problems trusting people and his nightmares and sleep problems continued. He had problems working with others and was detached from their only child who was disabled. They eventually divorced because of these problems. During the June 2014 Board hearing, the Veteran's second wife, who is the appellant and was married to him when he died, testified that the Veteran continued to suffer from similar symptoms as described by the Veteran's first wife. She stated that he was tortured by memories of Vietnam and refused to talk about his stressors to anyone, even to his treating psychiatrist. She found out only after he died the circumstances of his service and that he received an Air Medal for his service. In a letter dated July 2013, the Veteran's brother stated that his death was due to undiagnosed PTSD. He stated that he knew of the Veteran's condition from life-long association with the Veteran, having three years of active duty in the Army, and master's degree training in counseling psychology. The Veteran told him that he received counseling from an Army psychiatrist following immediately service for depression, anxiety, recurring nightmares and anger, which became severe and caused the divorce with his first wife. He stated that based on his observations of the Veteran's symptoms and his knowledge of the DSM-IV criteria for PTSD, he found that the Veteran clearly had PTSD and tried to encourage him to seek treatment. During the hearing, the Veteran's brother reiterated his findings that the Veteran was suffering from PTSD related to his service, which was not formally diagnosed prior to his death. As the Veteran's brother is trained in psychology, he has some expertise in making this finding. In light of the private medical evidence and the Veteran's brother's competent findings, which are supported by the credible lay evidence, and resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran had PTSD as a result of his active military service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Although the Veteran was not service connected for PTSD during his lifetime, in the context of suicide, 38 C.F.R. § 3.302 does not require that a determination of service connection for a mental disorder be made prior to the Veteran's death to establish service connection for mental unsoundness. DeLaRosa v. Peake, 515 F.3d 1319, 1323 (Fed. Cir. 2008). Next, the Board finds that the Veteran's service-connected PTSD caused or contributed to his death. In this regard, the July 2011 private opinion reflects that the Veteran's suicide was "as likely as not related to PTSD due to his service in Vietnam or, at the very least, a contributing factor in his suicide." Here, the Veteran had a long history of psychiatric disorders. In addition, there is no evidence of any reasonably adequate motive for suicide. In fact, the Veteran's wife testified that the Veteran was a good man and tried to provide for the family, but struggled with his psychiatric problems. Although an objective finding of mental unsoundness at the time of the Veteran's death is not of record, the credible statements made by the appellant, the Veteran's brother and his first wife, as well as the private treatment records and opinion noted above, are sufficient affirmative evidence showing circumstances that would not lead a rational person to intentional self-destruction. 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(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs