Citation Nr: 1804596 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-01 624 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran had active duty service from August 2006 to December 2014, including service in Iraq. He died in December 2015. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2016 decision in which the RO, inter alia, denied entitlement to service connection for the cause of the Veteran's death and denied entitlement to accrued benefits. The appellant filed a notice of disagreement (NOD) in June 2016. A statement of the case (SOC) was issued in December 2016, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) also in December 2016. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. Also, this appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The Veteran died in December 2015; the death certificate lists the immediate cause of death as a single gunshot wound to the head; deemed to be a suicide. 3. The Veteran did not have a pending claim for VA benefits at the time of his death, nor were there any benefits due to the Veteran but unpaid prior to the last date of entitlement. 4. Competent, probative, private medical opinion of record indicates that it is more likely than not that the Veteran had a mental disorder, assessed as major depressive disorder, that began during service and ultimately contributed materially and substantially to his death by suicide. 5. The Veteran's suicide was not due to willful misconduct because he was mentally unsound at the time of his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5121(a), (c) (2012); 38 C.F.R. §§ 3.102, 3.1000 (2017). 2. Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1101, 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.340, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). In view of the favorable disposition of the claim for service connection for the cause of the Veteran's death, the Board finds that all necessary notification and development actions needed to fairly adjudicate that claim have been accomplished With respect to the accrued benefits claim, the appellant was notified of the basis for the denial of that claim, and has been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any fundamental due process owed the appellant with respect to that claim. As will be explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Accrued Benefits At the outset, it should be noted that claims for VA benefits do not survive a claimant's death. However, a qualified survivor (including a surviving spouse) may carry on the deceased veteran's claim for benefits by submitting an application for accrued benefits within one year after a veteran's death. 38 U.S.C.A. § 5121 (a), (c); 38 C.F.R. § 3.1000. An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). A claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary's claim to reopen a finally disallowed claim based upon new and material evidence or a deceased beneficiary's claim of clear and unmistakable error in a prior rating or decision. Any new and material evidence must have been in VA's possession on or before the date of the beneficiary's death. 38 C.F.R. § 3.1000(d)(5). While a September 2015 RO rating decision adjudicated several service connection claims, a timely NOD with, or request for reconsideration of, any of the claims decided in that rating decision was not received within the one-year period following issuance of the rating decision. See 38 C.F.R. § 20.302 (2017). The Veteran's claims file does not otherwise reveal that there was any pending claim at the time of his death or that there were benefits due to him but unpaid prior to the last date of entitlement. Accordingly, there is no basis under which accrued benefits may be granted. The legal authority governing the award of accrued benefits is clear and specific, and the Board is bound by such authority. Although the Board is required to "render a decision which grants every benefit that can be supported in law," under these circumstances, there is no basis in law to grant the claim for accrued benefits. See 38 C.F.R. § 3.103(a) (2017). Accordingly, the appeal as to this matter must be denied for lack of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Service Connection for Cause of Death To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Compensation shall not be paid for disability that is the result of a veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110 (2012); 38 C.F.R. § 3.301 (c) (2017). In fact, the Federal Circuit held that a finding of willful misconduct precludes a finding of service connection for the purposes of entitlement to dependency and indemnity compensation under 38 U.S.C. § 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 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) (2017); 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. In the instant case, the Veteran's death certificate listed his immediate cause of death as a single gunshot wound to the head, which was deemed to be self-inflicted; or a suicide. At the time of his death, service connection had been established for bronchial asthma, acute sinusitis, rhinitis, chronic left ankle sprain, right shoulder strain, lumbar spine degenerative disc disease, chronic tonsillitis, and bilateral shin splints with bilateral tibial stress. The appellant does not contend and the record does not show that the Veteran's death was due to any of the disabilities for which service connection had been established at the time of his death. Rather, the appellant's primary contention is that the Veteran's suicide was the result of acquired psychiatric disability that was incurred during service. Thus, the Board must determine whether the Veteran had an acquired psychiatric disability of service origin that caused or contributed substantially or materially to cause his death. First addressing the question of in-service incurrence of an acquired psychiatric disability, the Veteran's service treatment records (STRs) do not document any specific diagnosis of or treatment for such psychiatric disability during service. There is indication that the Veteran frequently denied having symptoms of psychiatric disability, including feelings of depression, during service, including in August 2011, following a deployment to Iraq. The STRs do indicate, however, that the Veteran complained of sleep disturbance multiple times during service. For instance, a February 2007 primary care treatment report indicated that the Veteran had psychological symptoms consisting of sleep disturbance. He subsequently denied having sleep disturbance, including during a May 2011 clinical consultation. Nonetheless, he did report on his September 2014 report of medical history, in conjunction with his separation examination, that he had frequent trouble sleeping. He specified that he had difficulty falling and staying asleep. The examiner indicated that the Veteran suspected that his children may have been keeping him up, and that he had never sought treatment for this issue. There is no indication in the record that the Veteran sought treatment for psychiatric disability even following his separation from service. Depression screens performed following the Veteran's separation have indicated negative results. During a November 2015 VA clinical consultation, he denied having depression or an emotional condition, and reported having no suicidal thoughts or plan. In spite of the lack of evidence of in-service or post-service treatment for a psychiatric disability, the appellant has provided competent and credible evidence indicating that the Veteran indeed suffered from symptoms of psychiatric disability prior to his suicide in December 2015. See Layno v. Brown, 6 Vet. App. 465 (1994). In a June 2017 statement, the appellant gave a detailed account of the changes in the Veteran's attitude and demeanor that took place during and following his separation from service. She noted that she had known him since the fourth grade and that he had always been social and outgoing, and that he enjoyed outdoor activities with his family and friends. She noted that when he came home from deployment, when they were to be married, he was very jumpy, and that he would yell at her about her driving. She reported that he drank heavily during their honeymoon. She also reported that when he returned to deployment, he did not contact her as frequently and that he appeared to be short in temperament and disconnected. She noted that, following his separation from service, he no longer liked physical contact and that he had no interest in his old hobbies. He also began talking frequently about death and would talk about cult suicides, and that he would watch morbid videos. She further noted that he became distant with their children, and would get easily agitated with them and call them names and belittle them. He also began neglecting his personal hygiene, and would not shower, shave, or change his clothes unless the appellant brought it up. He began spending money on electronic cigarettes, and reportedly maxed out a credit on electronic cigarette supplies. The appellant further reported that the Veteran pulled out a gun on an occasion when they were having an argument, and she felt that this was done to intimidate her. The appellant reported that she pled with the Veteran to get help for his mental health issues. With respect to the circumstances of the Veteran's suicide, the appellant reported that after an argument, she took the kids and left town for the holidays to be with family. She reported that he would not take time off from work to be with family. While she ignored attempts made by the Veteran to contact her, she reported that she finally contacted him to tell him that his daughter had had an accident. She noted, however that he did not care. He was focused on whether she was coming back to him or not. When she told him that she did not want to discuss this, he told her that he needed to go to work and ended the call. He reportedly did not go to work, but went to his car with a gun, put two suicide notes on the windshield of his car and called the appellant again. While crying, he told her to take care of the kids for him. He told her that he could not do this anymore and that he was not afraid anymore. The appellant reported that she then heard a gunshot and the sound of the phone dropping. The Veteran's father, J. B., also provided a credible statement in support of the appellant's claim. He also reported that the Veteran had many friends and was very social and active prior to his entry into active service. He reported that when the Veteran was in Iraq, he became noticeably different. He would only talk with Mr. B. briefly and would not call back, for several weeks. Mr. B. reported that the Veteran appeared to be down and depressed. Mr. B. tried to get him to open up and discuss what he had been going through, but he would refuse. Mr. B. further noted that after his separation from service, the Veteran still appeared to be feel down, and that he still would not open up to him. He reported that the day before his suicide, the Veteran was very irate and believed that his wife was going to leave him, just because she had been gone for a few days. Furthermore, the record contains a July 2017 report from H. H.-G., a private psychologist. In the report, the psychologist noted the Veteran's social history, including having a friendly and outgoing personality, and calm demeanor, prior to service, as reported by the appellant. She further noted that the Veteran began shutting down in communication over the course of their marriage. He became detached and dissociated from emotion during his last years of service. The psychologist further noted the Veteran's change in behavior towards his children and that he was often angry, and emotionally and mentally abusive toward the appellant and their children. The Veteran was also reportedly always close to his family prior to service, but began drifting apart from them during service. The Veteran additionally spoke of suicidal and homicidal ideation. Additionally, he told the appellant about experiencing visual hallucinations. The appellant reported to the psychologist that the Veteran had symptoms of anxiety, increased agitation, explosive anger, weight gain, increased appetite, social isolation and withdrawal, and bouts of hypersomnia mixed with insomnia and broken sleep. The Veteran also became paranoid, putting a tracking device on the appellant's phone. Reportedly, he was not using illicit substance or alcohol at the time of his death. The psychologist additionally noted the Veteran's decline in personal hygiene, and that the appellant felt more like a caretaker toward the end of his life, having to do all shopping, laundry, cleaning, and meal preparation. The psychologist also noted that it was the appellant's firm belief that the Veteran was also planning to kill her and the children at the time of his death. The psychologist concluded that the Veteran endorsed symptoms associated with criteria of the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th ed. 2013) for Major Depressive Disorder, including depressed mood; anhedonia; weight loss/appetite disturbance; sleep disturbance; psychomotor agitation/retardation; loss of energy/fatigue; feelings of worthlessness; diminished ability to think, concentrate, and make decisions; recurrent thoughts of death, dying and suicide; and longstanding interpersonal rejection ideation. The psychologist provided the opinion that based on the conversation with the appellant, review of records, family statements, including from the Veteran's father, and review of salient literature and the Veteran's military separation records one year prior to his suicide, that it was more likely than not that the Veteran had a mental disorder (e.g., major depressive disorder), that began in service and ultimately contributed substantially and materially to his death. The Board finds the July 2017 opinion from the private psychologist, Dr. H.-G., to be fully informed, fully articulated, and well-reasoned, and, thus, probative. See Nieves-Rodriguez, 22 Vet. App. at 301 (2008). The psychologist fully described the Veteran's social and employment history in terms of his mental health, she reported on the evidence of record, including her interview of the appellant and the statements provided by the appellant and the Veteran's father, and referenced relevant medical literature. Based on all the evidence, she rendered the clear opinion that the Veteran more likely than not had a mental disorder that began during service, and ultimately contributed substantially to his death by suicide. Based on the lay and medical evidence of record, particularly, the credible lay assertions, and the probative medical opinion submitted , to specifically include the thorough opinion, and resolving all reasonable doubt in the appellant's favor, the Board finds that the required elements for service connection for an acquired psychiatric disability, assessed as major depressive disorder, are met. Although the Veteran was not service connected for a 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 psychiatric disability 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). Moreover, as indicated, there is competent, probative evidence indicating that the Veteran's psychiatric disability caused or substantially contributed to his death. In this regard, the competent, probative July 2017 opinion from the private psychologist clearly attributed the Veteran's suicide to his mental disorder acquired during service. The Board emphasizes that VA is not free to ignore a medical opinion or pertinent medical findings (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject such a medical opinion based on its own medical judgment (see Obert v. Brown, 5 Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based on lay assertions. Notably, the fact that the July 2017 opinion was largely based on lay observations of the what the Veteran was experiencing after service, and of his state of mind at the time of his death, does not diminish the probative value of the opinion unless the lay statements are deemed not credible. Such is not the case here. The Board further points out that there is no evidence of any reasonably adequate motive for the Veteran's suicide. 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, by Mr. B., and by the private psychologist provide sufficient affirmative evidence showing circumstances that would not lead a rational person to intentional self-destruction. Based on these circumstances, the Veteran's act of suicide is, in itself, evidence of his mental unsoundness; therefore, his suicide is deemed to have resulted from his mental unsoundness. In light of all the foregoing, and with resolution of all reasonable doubt on elements of the claim in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312; see also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER The claim for accrued benefits is denied. Service connection for the cause of the Veteran's death is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs