Citation Nr: 18159617 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 18-29 156 DATE: December 20, 2018 ORDER Entitlement to dependency, indemnity and compensation (DIC) on the basis of service connection for the cause of the Veteran’s death is granted. FINDING OF FACT The competent evidence of record shows that the Veteran’s death was likely directly related to service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW Resolving doubt in favor of the Veteran, service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2004 to August 2004 and from September 2005 to December 2012. The Veteran died in March 2017. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Cause of Death Laws and Regulations DIC may be awarded to a veteran’s surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C. § 1310 (2012); see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). Dependency and indemnity compensation benefits are thus predicated upon an adjudicatory finding that service connection for the cause of the veteran’s death is warranted. Before an award of dependency and indemnity compensation may be made, therefore, service connection for the cause of the veteran’s death must be established. Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for the cause of a Veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. See 38 C.F.R. § 3.312(a) (2017). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause of death, or be etiologically related. See 38 C.F.R. § 3.312(b) (2017). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially to death. It is not sufficient to show that it casually shared in producing death; rather it must be shown that there was a causal connection. See 38 C.F.R. §3.312(c) (2017). In order to be a contributory cause of death, it must be shown that there were “debilitating effects” due to a service-connected disability that made the Veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. See 38 C.F.R. § 3.312(c) (1) (2017); Lathan v. Brown, 7 Vet. App. 359 (1995). Factual Background and Analysis The record reflects that the Veteran died in May 2017. The death certificate lists his cause of death as a single gunshot wound to the head. At the time of the Veteran’s death, he was service-connected for PTSD at a 100 percent disability rating, tension headaches at a 30 percent disability rating, a right shoulder strain at a 10 percent rating, a left elbow strain at a 10 percent rating, a lumbar strain at a 10 percent rating, a right hip strain at a 10 percent rating, a right knee strain at a 10 percent rating, a left knee at a 10 percent rating, tinnitus at a 10 percent rating, gastroesophageal reflux disease(GERD) at a 10 percent rating, painful scars at a 10 percent rating, nocturnal bruxism at a 10 percent rating, irritable bowel syndrome at a 10 percent rating, a left hip strain at a noncompensable rating, an occipital scar at a noncompensable rating, scars of the left upper extremity at a noncompensable rating, a right knee scar at a noncompensable rating and a traumatic brain injury (TBI) at a noncompensable rating. The appellant asserts that service connection for the cause of the Veteran’s death should be allowed on the theory that his death was due to his service-connected PTSD disability. In this regard, the appellant in a February 2018 statement claimed that the Veteran’s death, which was a homicide when he was shot in the head after an argument, resulted because the Veteran’s PTSD symptoms impacted his reasoning which put him in this precarious position without regard for his own safety. Notably, the record demonstrates that the Veteran’s PTSD resulted in significant psychiatric impairment. A December 2011 Medical Board finding noted that the Veteran had struggled with “significant symptoms of PTSD and depression including mood instability, poor sleep, frequent intrusive thoughts, avoidance, marked irritability, a decline in appetite, anhedonia, hypervigilance, severe anxiety, problems with memory and concentration, an exaggerated startle response and suicidal ideation”. The physician also noted that the Veteran had a decline in concentration, episodes of rage, and frequent mood fluctuations. The Veteran specifically mentioned that if he were deployed, he worried that he would make poor judgment calls that would lead to the death of civilians. The physician additionally noted that the Veteran’s irritability and mood reactivity have placed severe strains on his relationships with his family and friends as the Veteran reported that it was difficult for him to presently trust others while he also felt emotionally distant and detached from all people. A July 2012 Findings of the Physical Evaluation Board Proceedings determined that the Veteran was unfit for service and was to be placed on the Temporary Disability Retired List due to his chronic PTSD. The Veteran underwent a VA examination in March 2014. The examiner noted that the Veteran had irritable behavior with angry outbursts, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration and sleep disturbance. The examiner also noted that the Veteran’s major depressive disorder included symptoms of concentration problems and indecisiveness and recurrent thoughts of death or suicidal ideation. The Veteran’s service-connected TBI also resulted in cognitive impairments such as memory problems, impairment in cognitive tasks and reduced cognitive speed. The Veteran was described as having total social and occupational impairment. The Veteran had 4 children but he had severe irritability and sometimes became angry and hostile which caused him to leave his interactions with his children. He often isolated himself from his wife and children because he was uncomfortable being around others. The Veteran reported that he was anxious and uncomfortable when he left the house and oftentimes his family outings were cut short because of his irritability or anxiety. The Veteran left his most recent jobs due to his anger. On one job he explained that his superior was critical of him which resulted in the Veteran getting angry and deciding that he had to leave in order to avoid a physical altercation with his superior. The Veteran again reported having frequent thoughts of suicide multiple times a week while he also felt anxious for much of the day. The Veteran reported that he had gotten into many verbal and physical altercations with unfamiliar people since he left the military. The examiner indicated that the Veteran’s symptoms included anxiety, suspiciousness, impaired judgment, impaired abstract thinking, impaired impulse control such as unprovoked irritability with periods of violence, grossly inappropriate behavior and a persistent danger of hurting himself or others. The examiner noted that the Veteran was easily distracted and reported that he often felt overwhelmed. The examiner also found that the Veteran’s symptoms of concentration problems, irritability/anger, fatigue, indecisiveness, impulsiveness and mild memory problems impacted his decision making. The Veteran again reported that he had been involved in several physical and verbal altercations and also reported having difficulty making decisions as he tended to react impulsively in situations where he felt threatened. The Veteran also had inappropriate behavior which one time involved him getting into a physical altercation with a motor vehicle driver after he stopped his car and confronted the other driver. Based on the foregoing, the Board resolves all doubt in the appellant’s favor and concludes that the Veteran’s service-connected PTSD contributed to his death. The Veteran’s death certificate again lists the immediate cause of his death as a gunshot wound to the head. The Board again notes that during the Veteran’s lifetime, he was service-connected for PTSD at a 100 percent disability rating based on total social and occupational impairment as the record demonstrates that he had significant PTSD symptomatology. As noted above, multiple treatment records documented significant PTSD symptoms which impacted his daily life. Notably, the December 2011 Medical Board finding physician indicated that the Veteran had a decline in concentration, episodes of rage, and frequent mood fluctuations. Additionally, the March 2014 VA examiner noted that the Veteran had irritable behavior with angry outbursts, reckless or self-destructive behavior, problems with concentration and symptoms including anxiety, suspiciousness, impaired judgment, impaired abstract thinking, impaired impulse control such as unprovoked irritability with periods of violence, grossly inappropriate behavior and a persistent danger of hurting himself or others. The March 2014 VA examiner also found that the Veteran’s symptoms of concentration problems, irritability/anger, fatigue, indecisiveness, impulsiveness and mild memory problems impacted his decision making. The Veteran reported on the examination that he had been involved in several physical and verbal altercations while also reporting having difficulty making decisions as he tended to react impulsively in situations where he felt threatened. The record additionally contains the appellant’s competent and credible assertions that the Veteran’s psychiatric symptoms due to his service-connected PTSD resulted in the Veteran’s immediate cause of death. As noted above, in her February 2018 statement, the appellant contended that the Veteran’s PTSD detrimentally impacted him in that he placed himself in a potentially fatal position which he did not realize due to his diminished judgment. The appellant also noted the Veteran’s PTSD negatively impacted the way he reacted, was able to control his emotions, behaved and thought. As a result, his PTSD symptoms contributed to the Veteran involving himself in an altercation which eventually resulted in his homicide. Accordingly, the record includes evidence of significant PTSD symptoms including irritable behavior with angry outbursts, reckless or self-destructive behavior, problems with concentration and suicidal ideation while also noting that prior to his death the Veteran had multiple verbal and physical altercations which were attributed to his PTSD related inappropriate behavior. As noted above, the Veteran was the victim of a homicide as a result of another altercation. As a result, the Board concludes that the evidence is in relative equipoise as to whether the Veteran’s death was causally related to his service-connected PTSD. Cf. Mariano v. Principi, 17 Vet. App. at 312. Accordingly, resolving all reasonable doubts in the appellant’s favor, the Board concludes that the criteria for service connection for the Veteran’s death are met. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel