Citation Nr: 18151246 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 13-29 578 DATE: November 16, 2018 ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to burial benefits is denied. FINDINGS OF FACT 1. The Veteran died in October 2010 due to a gunshot wound to the head, classified as a suicide. 2. Prior to his death, the Veteran was diagnosed with alcohol dependence and alcohol-induced mood disorder with onset during withdrawal; VA compensation is precluded for primary alcohol abuse disabilities and secondary disabilities that result from primary alcohol abuse. 3. There is no competent evidence establishing that the Veteran’s death from suicide was caused by a psychiatric disorder that was related to service. 4. The Veteran was service-connected for post-operative hallux valgus of the right and left feet, but the disabilities were rated as noncompensable. 5. The Veteran was not in receipt of VA disability compensation or pension at the time of his death, nor has it been suggested that, but for the receipt of military retirement pay, he would have been in receipt of compensation. 6. The Veteran had no pending claim for VA disability compensation or pension at the time of his death. 7. The Veteran’s body is not being held by a State. 8. The Veteran did not die while hospitalized by VA in a VA or non-VA facility or while traveling under proper authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1103, 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.300, 3.303, 3.312 (2018). 2. The criteria for burial benefits have not been met. 38 U.S.C. § 2302 (2012); 38 C.F.R. §§ 3.1600-3.1612 (2013); 38 C.F.R. §§ 3.1700-3.1713 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1991. He died in October 2011 and the Appellant is his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant and her daughter presented testimony at a personal hearing before a Veterans Law Judge (VLJ) in April 2014. A transcript is of record. The claims were remanded in June 2015 for additional development. The Board notes that the VLJ who conducted the April 2014 hearing is no longer employed by the Board and that the Appellant declined VA’s offer to have another hearing on the matter. 1. Service connection for the cause of the Veteran's death Dependency and Indemnity Compensation (DIC) may be awarded to a surviving spouse upon the service-connected death of the Veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). A veteran’s death may be service connected if the death resulted from a disability incurred or aggravated in the line of duty in the active military, naval or air service. 38 U.S.C. § 1310; 38 C.F.R. § 3.303(a). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death. 38 C.F.R. § 3.312(c). Service connection will be granted if the evidence shows that a disease or injury resulting in current disability was incurred during active service or, if pre-existing, was aggravated therein. 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 establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The Appellant claims that service connection is warranted for the cause of the Veteran’s death because although the Veteran was not service-connected for a psychiatric disability at the time of his death, he had ongoing psychiatric problems since service and it was his psychiatric disability that caused him to commit suicide in October 2011. The Veteran’s death certificate indicates that the immediate cause of death was a gunshot wound to the head, classified as a suicide. Service treatment records reveal that at the time of the June 1971 enlistment examination, the Veteran reported frequent trouble sleeping and depression or excessive worry. He reported depression or excessive worry again during a June 1975 separation examination, which was noted to refer to job related nervousness. Insomnia was reported as responding to medication in October 1986. The Veteran was seen in March 1989 for an initial evaluation at his Commander’s request for suicide assessment. It was noted that the Veteran had been having marital problems and his supervisor was concerned about shifts in his mood at work. The Axis I diagnosis rendered then and the next day during psychiatric evaluation was marital problems. On follow-up later that month, it was noted that the Veteran had sought help individually and would pursue help with his spouse; an Axis I diagnosis of marital problems in process of resolution was provided. Service personnel records indicate that the Veteran was having difficulty resolving on and off duty problems in April 1989, which were noted to have possibly affected his judgment in work relations. At the time of a July 1991 retirement examination, the Veteran reported frequent trouble sleeping but denied depression or excessive worry and nervous trouble of any sort. The examiner noted that this referred to occasional insomnia in 1983 and 1984, two to three times a week, which had been treated with sleeping pills, and that no treatment was required since 1984. Post-service evidence indicates that the Veteran was admitted to the Hampton VA Medical Center from August 29, 1994 until September 30, 1994. Records from this hospitalization indicate that the Veteran came in seeking help for his alcoholism for the first time after he realized that he was losing control over his addiction. A history of excessive use of alcohol since 1976 was reported. The diagnosis in 1994 and in subsequent treatment records was alcohol dependence. The Veteran attempted suicide in July 1995 and was admitted to Riverside Behavioral Health from July 17, 1995 until July 19, 1995, although treatment records associated with this admission have been destroyed. The Veteran sought treatment in August 2011 from Peninsula Pastoral Counseling, at which time an Axis I diagnosis of alcohol-induced mood disorder with onset during withdrawal was made. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s death was related to service. The Veteran was diagnosed with alcohol dependence and alcohol-induced mood disorder prior to his death. Alcohol abuse, unless a secondary result of an organic disease or disability, is considered to be willful misconduct and VA compensation is precluded for (a) primary alcohol abuse disabilities and (b) secondary disabilities that result from primary alcohol abuse. See 38 C.F.R. §§ 3.301 (c)(2), 3.301(d); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). There is no indication that the Veteran’s alcohol abuse stemmed from an organic disease or disability, but rather, that his dependence on alcohol caused the mood disorder diagnosed in August 2011. While the Appellant believes the Veteran had a psychiatric disability as a result of service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Appellant’s own opinion regarding the cause of the Veteran’s death is not competent medical evidence. There is no competent evidence establishing that the Veteran’s death from suicide was caused by a psychiatric disorder that was related to service. Accordingly, service connection for the cause of the Veteran’s death must be denied. The Board acknowledges Appellant’s representative’s request for an outside retrospective medical opinion in this case. It finds, however, that no opinion is needed in this case as service treatment records reference job and family problems without any psychiatric disorder diagnosed, and there is no indication from the post-service records that the Veteran had any psychiatric disorder other than alcohol dependence and alcohol-induced mood disorder. See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The Board has considered the applicability of the benefit of the doubt doctrine, but finds that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to burial benefits Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the regulations 38 C.F.R. §§ 3.1600 through 3.1612 and replaced them with new sections 3.1700 through 3.1713. See 79 Fed. Reg. 32,653, 32,658. Since this claim was pending at the time of the regulation change, the Board shall analyze the claim under both the old and the new regulations. The Appellant’s claim for service connection for the cause of the Veteran’s death has been denied; as such, only the nonservice-connected burial benefits regulations are for application. The claim for burial benefits based on a service-connected death is denied as a matter of law. See 38 C.F.R. § 3.1704. Under the previous regulations in the case of a nonservice-connected death, entitlement to burial benefits was based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation; or, (2) the veteran had an original or reopened claim for either benefit pending at the time of the veteran’s death and in the case of a reopened claim there is sufficient prima facie evidence of record on the date of the veteran’s death to show entitlement; or (3) the deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and the body of the deceased is being held by a State. 38 U.S.C. § 2302(a) (2002); 38 C.F.R. § 3.1600(b) (2013). Burial benefits were also paid if a person died from nonservice-connected causes while “properly hospitalized” by VA (in a VA or non-VA facility). 38 C.F.R. § 3.1600(c) (2013). Finally, if a Veteran died in route while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care, burial expenses will be allowed as though death had occurred while properly hospitalized by VA. 38 C.F.R. § 3.1605 (a) (2013). The new regulation regarding nonservice-connected burial benefits is found at 38 C.F.R. § 3.1705. That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. As with the old regulation, burial allowance is also warranted for a veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. The evidence shows that the Veteran died in October 2011 due to suicide from a gunshot wound to the head while at home. The Appellant paid the expenses for the Veteran’s funeral and cremation and the Appellant filed the current claim in June 2012. See VA Form 21-534. The record reflects that, at the time of his death, the Veteran was not in receipt of VA pension benefits; he did not have a claim pending; and, while he had war time service, there is no evidence that his body was held by a State because no next of kin could be located. Although the Veteran was service connected for disabilities affecting his feet, the disabilities were rated as noncompensable; as such, the Veteran was also not in receipt of VA compensation benefits at the time of his death. Under these circumstances, non-service connected burial benefits are not warranted under either the old or new regulations. Under the old regulation, the claim fails both because the Veteran was not in receipt of pension or compensation benefits and because the Veteran did not have a claim pending at the time of his death. Moreover, while the Veteran had war time service, the claim also fails under the old regulation because the Appellant does not claim and the record does not show that his body was held by a State and his war time service alone does not warrant awarding burial benefits. 38 C.F.R. § 3.1600(b) (2013). In this regard, there is also no evidence that the Veteran was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty. Id. Under the new regulations, the claim fails because the Veteran was not receiving VA pension or disability compensation, because there is no evidence that he would have been receiving disability compensation if not for the receipt of military retired pay, and because the Veteran did not have a claim pending at the time of his death. 38 C.F.R. § 3.1705(b) (2018). Likewise, as there is also no evidence that the Veteran died in a VA facility or while being transported to or from such a facility, the Board also finds that burial benefits are also not warranted under 38 C.F.R. § 3.1605 (a) (2013) or 38 C.F.R. § 3.1706 (2018). The Board must also consider whether the Appellant is entitled to a plot or interment allowance. Under both the old and new regulations for a plot or interment allowance, entitlement to such an allowance is predicated on entitlement to burial benefits in general. See 38 C.F.R. § 3.1600 (f)(1) (2013); 38 C.F.R. § 3.1707 (2018). As entitlement to burial benefits is not warranted, the additional allowance of a plot or interment allowance is similarly not warranted. The Board acknowledges and appreciates the Veteran’s honorable military service and is sympathetic to the loss his family has suffered. The payment of burial benefits, however, is strictly based on specific statutory and regulatory guidelines, which have not been met in this case. There being no doubt to be resolved, the claim for entitlement to burial benefits is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel