Citation Nr: 1637101 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 12-08 073A ) 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: The American Legion ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran had active military service from July 1955 to July 1975. He died in October 2008. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. FINDINGS OF FACT 1. The Veteran died in October 2008. The immediate cause of death was a gunshot wound to the chest, deemed a suicide, due to or as a consequence of posttraumatic stress disorder (PTSD). 2. The Veteran's PTSD was related to his service. 3. The Veteran's suicide was not due to willful misconduct because he was mentally unsound at the time of his death. 4. His PTSD was the cause of the Veteran's death. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, 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 (2015). 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 (2015). 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. 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 (2015). 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) (2015). 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). 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). 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) (2015). In fact, the Federal Circuit held that a finding of willful misconduct precludes a finding of service connection for the purposes of DIC entitlement under 38 U.S.C.A. § 1310. See Myore v. Nicholson, 489 F. 3d 1207, 1212 (2007). 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. 38 C.F.R. § 3.302(a)(2015); Elkins v. Brown, 8 Vet. App. 391, 397-98 (1995). 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 (2015). The Veteran died in October 2008. The death certificate lists the immediate cause of death as a suicide by gunshot wound to the chest due to PTSD. The appellant contends that the Veteran had PTSD based on his service in combat in Vietnam, which was not diagnosed prior to his death. She further contends that his PTSD caused him to commit suicide. Service connection had not been established for any disability at the time of the Veteran's death. The Veteran did have a claim for service connection for PTSD pending at the time of his 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 evidence of record shows that the Veteran served in both Thailand and Vietnam as a specialist with guns for aircraft. Although he was frequently listed as a gunner, his military personnel records indicate he was responsible for loading, monitoring and maintaining all guns before and during airborne operations. He was awarded several Air Medals for engaging in aerial flight in connection with military operations against a hostile force and was awarded the Distinguished Flying Cross for an aerial flight in June 1972 in the face of hostile antiaircraft fire. Several of his performance evaluations during this time indicate that he loaded, monitored and maintained guns during airborne operations and scanned for and reported enemy antiaircraft fire. One evaluation specifically noted that he cleared a gun malfunction in the dark while the plane was evading enemy fire. As such, this evidence will be accepted as conclusive evidence of an in-service stressor. Prior to his death, the Veteran submitted a statement in September 2008 that he experienced flashbacks and intrusive thoughts of his experiences in service and tried to bury or deny his feelings about those experiences. He also complained of insomnia and of how he closed off all his feelings and thoughts after returning from Vietnam. His wife also submitted a statement that her husband kept everything inside himself behind a wall emotionally and that he had mood swings. After the Veteran's death, in a letter dated in October 2008, the Veteran's private treating physician noted that the Veteran had multiple medical problems with a history of depression in the past with likely post trauma syndrome from his history in the military and combat history. In light of the private medical evidence of PTSD, which is supported by the credible lay evidence in the Veteran's and appellant's statements, 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). The Board further finds that the Veteran's service-connected PTSD caused or contributed to his death. In this regard, the October 2008 death certificate reflects that the Veteran's suicide was due to PTSD and his private treating physician attributed his observed depression and "post trauma syndrome" to his combat service in Vietnam. There is no evidence of any reasonably adequate motive for suicide. In fact, the appellant in correspondence received in June 2009, stated that the Veteran became depressed after filing his initial claim for PTSD and talking to her about his experiences in service. She stated that he had difficulty sleeping and did not want to be left alone. She stated that he committed suicide just two weeks after he filed his claim for service connection. 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, as well as the private treating physician and the death certificate 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. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs