Citation Nr: 1746953 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-36 415 ) DATE ) ) On appeal 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: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and her son, T.L. ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Army from October 1966 to July 1969. Regrettably, he passed away in June 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Jurisdiction of this matter was subsequently transferred to the Regional Office (RO) in Muskogee, Oklahoma. The Appellant and her son appeared and testified before the undersigned Veterans Law Judge at a videoconference hearing in December 2016. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. The Veteran died in June 2013. 2. At the time of his death, the Veteran had depression, which was significantly worsened by his service-connected disabilities of peripheral neuropathy and peripheral vascular disease. 3. The Veteran's depression contributed substantially and materially to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.302, 3.303, 3.304, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC). 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Generally, entitlement to DIC for the cause of a veteran's death is 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; 38 C.F.R. § 3.303. Service connection is also warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). A finding of secondary service connection requires competent evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the record indicates that the Veteran was service connected for the following disabilities at the time of his death: peripheral vascular disease of the right lower extremity, diabetes mellitus, tinnitus, defective hearing of the left and right ear, and bilateral peripheral neuropathy of the lower extremities. As noted above, the Veteran's surviving spouse and son testified at the videoconference hearing before the undersigned Veterans Law Judge in December 2016. At that time, each reported that the Veteran experienced anger issues and would routinely discuss suicide before he eventually took his own life. The Appellant reported that the Veteran would also quit taking his medication and would remain in his bedroom for two to three days at a time. In the VA Form 9, the Appellant contended that the Veteran took his life because he was depressed due to his deteriorating health. In the September 2013 notice of disagreement, she also indicated that the Veteran's service-connected disabilities, including his diabetes, were so severe and painful that the Veteran became very depressed. She stated her belief at that time that the pain caused depression and that the depression contributed to his ultimate suicidal actions. The Board regrets the circumstances leading up to the Veteran's death and has no reason to doubt the sincerity or credibility of the testimony and statements of the Veteran's surviving spouse and son. Moreover, the Board notes that they are competent to describe the observable pain and symptoms caused by the Veteran's service-connected conditions in addition to the deterioration in the Veteran's physical and mental state. Accordingly the Board finds that they are entitled to at least some degree of probative weight. However, there is no indication that either of the witnesses at the hearing possesses the medical knowledge, experience, or training to provide a competent opinion regarding the complex medical question of the etiology of the Veteran's death and the contributing factors to his suicide. Nonetheless, the Board notes that the Appellant submitted an additional statement in support of her claim from Dr. F.B., the Veteran's treating psychologist. In this December 2016 statement, the psychologist noted that he had treated the Veteran for many years before his death in connection with psychological symptoms relating to a worker's compensation claim. Dr. F.B. indicated that the Veteran was suffering from PTSD relating to his military service in the Republic of Vietnam and also stated that the Veteran was suffering from service-related diabetic neuropathy. Ultimately, this clinician reported in his professional opinion that it was likely that the Veteran's PTSD and concomitant depression related to his medical disability "culminated in his unfortunate early demise to suicide." In contrast to the witnesses at the hearing, this treating clinician possesses the medical training and experience as a trained psychologist to render a competent opinion regarding the causal factors leading up to the Veteran's death. The Board also notes that the treatment notes in both the VA and private psychological treatment records appear to support the contention of the Appellant and the Veteran's treating psychologist that the symptoms of the Veteran's service-connected disabilities contributed to his depression and ultimately to his death. For instance, in a private treatment note from June 2006, Dr. F.B. remarked on the Veteran's hypersensitivity to psychophysiological stressors. VA treatment notes also document the Veteran's pharmacological treatment of his depressive symptoms prior to his death. The Board also finds particularly probative a May 2008 VA treatment note in which the Veteran's treating clinician noted that the Veteran's depression was better especially when the Veteran's left leg pain was "doing better." This evidence suggests that the Veteran's physical conditions and pain contributed to the severity of and aggravated his depression. As such, the Board finds that the preponderance of the probative evidence of record establishes that the Veteran's service-connected peripheral vascular disease and neuropathy aggravated the Veteran's depression. The record also includes independent verification that the Veteran's service-connected disabilities increased his physical discomfort and pain. As an example, at a VA medical examination conducted in February 2009, the Veteran reported calf pain in addition to tingling and numbness in his feet. That examiner also indicated that the Veteran's service-connected disabilities also contributed to the Veteran's fatigue. As noted above, the record also contains credible and competent testimony from the Appellant regarding the increasing pain the Veteran experienced prior to his death and the deterioration of his service-connected disabilities. Taken with the opinion of the Veteran's treating psychologist that the Veteran's physical disabilities contributed to his depression and ultimate death, the Board finds that the evidence as a whole suggests that the Veteran's service-connected disabilities of peripheral neuropathy and peripheral vascular disease aggravated the Veteran's depression which contributed substantially to his death. The Board also recognizes that notes that compensation shall not be paid for disability resulting from a veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. § 3.301. 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 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). 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(b). Here, the Board ultimately finds that there is no affirmative competent evidence in the record showing circumstances which could lead a rational person to self-destruction. 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). Here, the Board finds no evidence of any reasonably adequate motive for suicide. The Board also notes that the very act of suicide is considered to be evidence of mental unsoundness and that, when taken into account with the evidence of record, the issue of whether or not the Veteran was of unsound mind is at least in relative equipoise. That is, the preponderance of the evidence does not weigh in favor of a finding that the Veteran's suicide was an act of willful misconduct. Accordingly, after resolving all reasonable doubt in the Appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted in this case and the claim is granted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs