Citation Nr: 1734530 Decision Date: 08/22/17 Archive Date: 08/30/17 DOCKET NO. 09-23 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran had active military service from June 1968 to January 1969. He died in December 2015. The appellant is his surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2007 and September 2016 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO). In an August 2014 decision, the Board denied service connection for an acquired psychiatric disability, other than PTSD (the matter of service connection for PTSD was denied in a prior November 2009 unappealed rating decision). The Veteran appealed the August 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the Court issued an Order that vacated the August 2014 Board decision and remanded the matter on appeal for readjudication consistent with the terms outlined in a July 2015 Joint Motion for Remand (JMR) by the parties. Thereafter, the Veteran passed away during the pendency of the appeal. The law has been amended to permit substitution of claimants when the original claimant dies during the pendency of the claim or appeal. 38 U.S.C.A. § 5121A (West 2014). The amendment applies to pending claims or appeals where the death occurred on or after October 10, 2008. In January 2016 the Board dismissed the deceased Veteran's claim because of his death during the appeal. However, the appellant was properly substituted for the Veteran and adjudication of the deceased Veteran's psychiatric claim continues. The psychiatric claim came before the Board again in May 2016 and was remanded for further development consistent with the JMR. In May 2016, the Board also acknowledged the development of claims for cause of death and DIC. The September 2016 rating decision denied service connection for the cause of the Veteran's death and DIC under 38 U.S.C.A. § 1318. The appellant appealed in October 2016. Subsequently, a March 2017 statement of the case (SOC) was issued denying the claims and the appeal was then perfected to the Board in March 2017. The Board notes that with regard to the psychiatric claim, additional evidence has been received since the most recent March 2017 supplemental statement of the case (SSOC), including an April 2017 statement from the appellant's representative. However, the contentions in the evidence are cumulative of that already of record. Thus, a remand for a supplemental statement of the case is not necessary for the psychiatric claim. See 38 C.F.R. § 20.1304(c) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2016). 38 U.S.C.A. § 7107 (a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's psychiatric disorders did not manifest during service, and are not otherwise related to service. 2. The Veteran died in December 2015. His death certificate lists the immediate cause of death as multisystem organ failure and sepsis. 3. Service connection is not in effect for any condition. 4. It is not shown that the disease process leading to the Veteran's death had its onset during, or was otherwise related to, his active military service or service-connected disability. 5. The Veteran was not rated as being totally disabled as a result of a service-connected disability (or based on unemployability) for 10 continuous years immediately preceding his death, was not rated as being totally disabled continuously for a period of no less than five years from the date of separation from service, nor was he a former prisoner of war. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.312 (2016). 3. The criteria for DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 2014); 38 C.F.R. §§ 3.22, 3.102 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Following the May 2016 Board remand, a significant amount of medical evidence was received. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A. Psychiatric Disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran contended that he had an acquired psychiatric disorder related to experiences and incidences in service. In a May 2007 statement, the Veteran indicated he was physically and mentally abused throughout service and had to fight to defend himself. He indicated his sergeant would call him names and humiliate him. The Veteran's service treatment records do not show treatment or a diagnosis for a psychiatric disability; however, they do note that he was seen at the mental health clinic in January 1969 for a pending discharge. The Veteran's personnel records show that he was discharged due to a passive aggressive personality, aggressive type, manifested by immaturity, and that he was irresponsible and abused alcohol. A formal psychiatric evaluation during service or prior to separation is not of record. Thereafter, a December 1994 VA treatment record noted that the Veteran had used cocaine and drank alcohol and he was diagnosed with cocaine dependency and alcohol dependency. A February 1997 private psychiatric evaluation indicated that the Veteran "appeared to have an impulse control disorder for most of his life, as well as a polysubstance dependence problem." The physician commented that due to the Veteran's poor anger control, it became difficult for him to work. He was diagnosed with impulse control disorder and polysubstance dependence in remission. In the VA treatment records, an August 2006 record diagnosed him with adjustment disorder, antisocial personality disorder and depression. A June 2007 VA treatment record reflected that the Veteran presented for treatment at the Emergency Tactical Unit with complaints of being depressed and needing to be admitted. He was angry and reported suicidal thoughts. A November 2008 VA outpatient psychiatry note indicated the Veteran reported having no combat experience, but still experienced traumatic events. He reported not having any contact with weapons and that he was a clerk typist in service. He further stated that he was discharged from the military because he was unable to adapt due to his personality. He reported sleep difficulties and hearing voices. A January 2009 VA treatment record showed a diagnosis of mood disorder secondary to general medication with psychotic features. Following a September 2012 Board remand, the Veteran was afforded a VA examination in October 2012 in which he was diagnosed with antisocial personality disorder. The examiner noted that the Veteran had been diagnosed with major depressive disorder during his VA treatment. He indicated the Veteran's primary condition was his antisocial personality which led to his incarceration. He stated the Veteran did not have a mental disorder caused by military service. He reiterated the Veteran did not have PTSD or any other mental condition caused by military service and the primary cause of his difficulties had been his antisocial personality which had resulted at times, in mood impairment and the diagnosis of major depressive disorder. Thereafter, the Board denied the psychiatric claim in an August 2014 decision. The Board determined "there is no credible evidence of a chronic psychiatric disorder in service, and no convincing evidence of continuous symptomatology since service and symptoms of adjustment disorder and major depressive disorder were not noted until more than 35 years after separation from service." As noted, the Veteran appealed the decision to the Court. In the July 2015 JMR, the parties agreed that a remand was needed as the Board relied on an inadequate medical opinion in its August 2014 decision. The JMR directed the Board to obtain a new psychiatric examination to consider all of the Veteran's psychiatric disabilities and whether such are the result of his personality disorder or are separate and distinct mental health disorders, which may have been superimposed on the personality disorder. Thereafter, the Board was notified the Veteran passed away in December 2015. The Board issued a January 2016 decision dismissing the claim. However, the Veteran's surviving spouse was properly substituted to continue the Veteran's psychiatric claim. The claim then came before the Board in May 2016 and was remanded for further development consistent with the July 2015 JMR. The Board obtained updated records related to the claim, including VA and private treatment records, as well as records from the Social Security Administration (SSA). Additionally, a March 2017 VA opinion was obtained from a psychologist. She reviewed and discussed the Veteran's medical history and noted he had been diagnosed with major depressive disorder and antisocial personality disorder. She noted the October 2012 examiner found neither diagnosis was related to service and that the personality disorder caused him the most impairment and was the primary diagnosis. The March 2017 psychologist indicated the VA treatment notes of record support a chronic bitterness on the part of the Veteran regarding the military and VA and his psychological testing results were often invalid suggesting overreporting of symptoms, possibly indicative of malingering. She noted this would be consistent with his diagnosed antisocial personality disorder. She reported that VA and non-VA records support the Veteran had been treated with sleep, antipsychotic, and antidepressant medication within the last year of his life and that the last mental health professional he received treatment from was July 2014. The reviewer concluded it is not at least as likely as not that any diagnosed psychiatric disorder was incurred in or related to service. She stated his diagnosed psychiatric disorders are separate and distinct from his personality disorder. Further, the major depressive disorder and adjustment disorder arose from his numerous medical issues and the impairment, frustration and limited quality of life, including paralysis, these issues caused him. She noted his history of impulsive anger which may have led to a diagnosis of impulse control disorder, was better accounted for by his diagnosed antisocial personality disorder or mood disorder. She reiterated that the etiology of his diagnosed major depressive disorder is the numerous medical issues he suffered, including paralysis, and that the treatment notes support that his distress was due to these conditions, as well as his poor quality of life. She noted there is no evidence the Veteran was depressed in service; however, he had behavioral issues during service consistent with the antisocial personality disorder. She further reported personality disorders are characterological and a product of numerous early life variables, including genetics and the environment and the Veteran's diagnosed antisocial personality disorder was not caused by service. Based on a review of the record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a psychiatric disorder. In this regard, the Board finds that the opinion of the March 2017 reviewer, which was provided following a JMR and Board remand, is the most probative evidence of record. The opinion was provided by the reviewer after a thorough review of the record, including the Veteran's contentions, and is highly probative as it reflects consideration of all relevant facts and contains a detailed rationale for the conclusions reached. The opinion proffered considered all of the pertinent evidence of record, relying on and citing to the records reviewed and she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's and appellant's statements regarding the onset of his psychiatric conditions. Although the Veteran was competent to report the circumstances of his service, including what he suffered during service, the onset and etiology of his psychiatric disorders requires medical expertise. Furthermore, determining the etiology of a psychiatric disorder requires specialized knowledge and understanding and as a layperson, the Veteran was not competent to opine as to the onset or etiology of such disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran's statements as to the onset or etiology of his psychiatric disorders are afforded less probative weight than the March 2017 psychologist's opinion. Additionally, the Board notes in response to the March 2017 expert opinion, the appellant's representative submitted an April 2017 statement in which he indicated disagreement with the conclusions from the opinion. He stated the determination that the Veteran's psychiatric disability was secondary to his declining health is inaccurate. He noted there are numerous medical records that indicate the Veteran experienced symptoms attributable to his psychiatric disability long before his health began to fail, including form 1994 and 1997. He indicated a September 1994 record showed the Veteran was hospitalized for suicidal ideation and an April 1997 rating decision granted entitlement to the Veteran for non-service connected pension, as he was terminated from his last job due to physical aggression. Additionally, the Veteran had past history of alcohol and drug abuse with hospitalizations, and his employment was consistently impaired due to poor anger control. With regard to the etiology of the psychiatric disorders, the Board places greater probative weight on the March 2017 examiner's opinion than the April 2017 representative's letter. The March 2017 psychologist reviewed the Veteran's entire medical history and determined his depression was related to his numerous medical issues, including paralysis, and not to service. While the Board acknowledges the earlier evidence from 1994 and 1997 which indicate psychiatric symptoms from which the Veteran may have suffered, there is no medical opinion of record indicating a diagnosed psychiatric disorder had its onset during or is otherwise related to service. In contrast, the March 2017 opinion supports the Veteran's behavioral issues in service are consistent with antisocial personality disorder and not a psychiatric disorder. In summary, the Board finds there are no medical opinions of record in support of the Veteran's claim that he has a psychiatric disorder related to service. Further, the most probative evidence of record supports that his in-service behavioral issues are consistent with antisocial personality disorder and not a psychiatric disorder. Therefore, the preponderance of the evidence is against the claim of service connection and the benefit of the doubt doctrine is inapplicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Consequently, service connection for an acquired psychiatric disorder, other than PTSD, is not warranted. B. Cause of the Veteran's Death and DIC under 38 U.S.C. § 1318 Legal Criteria A surviving spouse of a qualifying veteran who dies as a result of a service-connected disability is entitled to receive DIC. 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 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Under 38 U.S.C.A. § 1318 (a), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service-connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay or correction of a rating after the veteran's death based on clear and unmistakable error (CUE)) was not in receipt of compensation but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. For the benefits to be awarded to the appellant, the veteran's service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the veteran's separation from service; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former POW. The total disability rating may be schedular or based on unemployability. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. Analysis The appellant is seeking to establish that the Veteran died as a result of his service-connected disabilities. The Veteran died in December 2015. The death certificate lists the immediate causes of death as multisystem organ failure and sepsis. As the present claim for entitlement to service connection for an acquired psychiatric disorder is denied, the Veteran has no service-connected disabilities in effect. In this case, it has not been shown that the disease process leading to the Veteran's death had its onset during, or was otherwise related to active military service or service-connected disability. Further, the Veteran was not rated as totally disabled for a continuous period of 5 years from the date of his separation from service, and he was not a former prisoner of war. The Veteran was also not rated as being totally disabled as a result of a service-connected disability (or based on unemployability) for 10 continuous years immediately preceding his death. The Board notes that even if the Veteran's psychiatric claim was granted at 100 percent from the date of the claim, he would still not qualify as being totally disabled for 10 continuous years prior to his December 2015 death. Moreover, CUE in a prior decision that may extend that time period has not been raised. The criteria for entitlement to DIC under 38 U.S.C. § 1318 are therefore not met. Although the Board is sympathetic to the appellant and acknowledges her position in this case, the Veteran has no service-connected conditions in effect. Further, entitlement to DIC benefits under 38 U.S.C. § 1318 is based upon specific and unambiguous statutory requirements that have not been met in this case. Thus, the appeal must therefore be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, other than PTSD, is denied. Service connection for the cause of the Veteran's death is denied. DIC under 38 U.S.C.A. § 1318 is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs