Citation Nr: 1759080 Decision Date: 12/20/17 Archive Date: 12/28/17 DOCKET NO. 12-27 641A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to nonservice-connected death pension. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty with the Colorado Army National Guard from June 2007 to June 2008. The Veteran died in October 2008. The appellant is the Veteran's mother. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Jurisdiction has since transferred to the Regional Office (RO) in Denver, Colorado. In August 2016, the appellant testified before the undersigned Veteran's Law Judge during a Board hearing held at the RO in Denver, Colorado. A transcript of that hearing is of record. As the Veteran did not have a spouse or children at the time of his death, the appellant is the Veteran's next of kin. The record does not indicate that the Veteran's father is deceased, nor does it demonstrate whether the Veteran's father has been made aware of this claim. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's cause of death is related to his military service. 2. The award of dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death provides a greater benefit than a nonservice-connected death pension. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 101, 1310, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.25, 3.59, 3.102, 3.159, 3.312 (2017). 2. As a greater DIC benefit is being awarded, the appeal for entitlement to nonservice-connected death pension is dismissed as moot. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.701, 3.702 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for cause of death may be awarded for a veteran's death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. The service-connected disability will be considered 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). The service-related 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. 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). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service-connected generally, i.e., while the veteran is still alive. 38 U.S.C. § 1310 (2012). Issues involved in a claim for dependency and indemnity compensation (DIC), such as service connection for the cause of death, are decided without regard to any prior disposition of those issues during the Veteran's lifetime. 38 C.F.R. § 20.1106. The appellant contends that the Veteran suffered from undiagnosed PTSD, which led him to take his life within one year of his discharge from active duty. The Veteran's service personnel records document that while on active duty, the Veteran served in designated imminent danger pay areas in Iraq and Kuwait between September 2007 and May 2008. At a post-deployment health re-assessment conducted in September 2008, the Veteran reported emotional problems making it somewhat difficult to do work, take care of things at home, or get along with others for the past month. He also reported problems sleeping and using alcohol more than he meant to. At an October 2008 VA audiological examination, the Veteran reported experiencing nearly daily headaches brought on by stress, and having vivid dreams approximately once per week. At the Board hearing, the appellant testified that the Veteran also was not eating and had lost approximately 30 pounds in the four months since he'd left active duty. The Veteran's death certificate indicates that he died of a self-inflicted gunshot wound to the head, and was found by his parents in October 2008. A follow-up VA medical suicide behavior report confirmed the appellant's report that the Veteran took his life one day before he was set to return to drill with his Colorado National Guard unit. Although the Veteran was not service connected for PTSD or another psychiatric disability 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). Considering the above, and affording the appellant the benefit of the doubt, the Board finds that the immediate cause of the Veteran's death was an acquired psychiatric disorder etiologically related to his active military service; service connection for the Veteran's cause of death is therefore warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Finally, the Board acknowledges that the appellant has initiated an appeal with respect to her claim for nonservice-connected death pension. In the present case, DIC benefits under 38 U.S.C. § 1310 are being granted based upon a service-connected cause of death. As an award of DIC benefits is the greater benefit, the claim for nonservice-connected death pension is considered moot, and is therefore dismissed. See 38 C.F.R. § 3.151 (2017) (a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise); see also 38 U.S.C. §§ 1310 (2012). ORDER Entitlement to DIC on the basis of service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of VA monetary benefits. The appeal seeking entitlement to nonservice-connected death pension is dismissed. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs