Citation Nr: 18153461 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-12 194A DATE: November 27, 2018 ORDER Service connection for the Veteran's cause of death is granted. FINDINGS OF FACT 1. The Veteran died in 2010 from a self-inflicted gunshot wound to the chest. 2. At the time of his death, the Veteran’s multiple myeloma was service connected and rated at 100 percent, and the Veteran’s service-connected prostate cancer was rated at 40 percent. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been approximated. 38 U.S.C. § 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1955 to November 1958, and January 1959 to April 1976. He died in 2010. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. The Appellant was scheduled for a videoconference hearing before a Veterans Law Judge in June 2018. Due to transportation difficulties, the Appellant requested that the hearing be rescheduled. The hearing was rescheduled for October 2018. However, the Appellant failed to appear at the scheduled time and location. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. 20.702 (d) (2017). As no good cause has been alleged, the request for a hearing is considered withdrawn. 1. Entitlement to service connection for the Veteran's cause of death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). 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. 38 C.F.R. § 3.312(a). A principal cause of death is one in which a service-connected 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). A contributory cause of death is one which a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). A contributory cause of death is inherently one not related to the principal cause. 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). Compensation shall not be paid if death was the result of a Veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110 (West 2014); 38 C.F.R. § 3.301 (c) (2015). In order for death by suicide to constitute willful misconduct, the act of self-destruction must be intentional. A person of unsound mind is incapable of forming an 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)(2015); 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 (2015). (Italics added). The Appellant contends that the Veteran committed suicide to escape the pain caused by his service-connected disabilities. She stated that prior to his death, the Veteran requested stronger pain medications, as his current prescriptions did not provide relief. The Veteran was afforded a VA examination in June 2005 regarding his multiple myeloma. The examiner stated that the aggressive degenerative bone process would almost certainly lead to the Veteran’s demise, and it was very painful for the Veteran to perform any movement at the time. Private treatment records from August and September 2010 indicate the Veteran was treated for chronic pain due to his service-connected disabilities, as well as side-effects of multiple prescriptions. Shortly before his death, the Veteran was hospitalized and assessed to have an altered mental status caused by his prescription medications. The Veteran’s private treating physician, Dr. R. L. Doll, provided an opinion in February 2011. Dr. Doll opined that the Veteran committed suicide to escape the pain that stemmed from multiple myeloma and the neuropathy caused by his myeloma medications. He stated that because multiple myeloma was etiologically related to the Veteran’s service, the Veteran’s suicide is also related to his military service, as it was a consequence of a service connected disability. Based on a review of the record, the Board finds service connection for the Veteran’s cause of death is warranted. The June 2005 VA examiner noted the degree of pain the Veteran was in at the time, and treatment notes from 2010 indicate the pain from the Veteran’s service-connected multiple myeloma persisted. The Appellant provided lay statements about the amount of the pain the Veteran suffered despite having prescription pain medications, and his private physician opined that the Veteran committed suicide to escape the pain caused by service-connected disabilities. Reviewing the evidence with a view towards according the benefit of the doubt to the Appellant, but for the service-connected disorder, the Veteran would not have committed suicide. Thus, service connection for the Veteran’s cause of death must be granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel