Citation Nr: 1807508 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-27 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1956 to February 1959 and from February 1960 to July 1960. On December [REDACTED], 2011, he passed away at the age of 72. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a September 2012 rating determination by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota that denied the Appellant's claim of entitlement to death benefits. Subsequent to the submission of a notice of disagreement (NOD) requesting review by a Decision Review Officer (DRO) and additional evidence, the denial of the Appellant's claim of entitlement to service connection for the cause of the Veteran's death was re-evaluated de novo and denied in a July 2014 rating decision issued by VA's Regional Office (RO) in Phoenix, Arizona. The Appellant appealed. In April 2017, the Appellant testified during a Video Conference hearing before the undersigned Veteran's Law Judge. A transcript of this hearing has been associated with the claims file. For the record, this appeal was processed using the Veteran's Benefits Management System (VBMS), Caseflow Reader, and Legacy Content Manager. FINDINGS OF FACT 1. The Veteran died on December [REDACTED], 2011. His Death Certificate lists the immediate cause of death as cutaneous burn injuries. Chronic obstructive pulmonary disease is listed under the certificate's section of "other significant conditions contributing to death but not resulting in the underlying cause of death." 2. At the time of his death, the Veteran was service-connected for athlete's foot, rated as 10 percent disabling. The Veteran was not service-connected for any other disabilities. 3. The preponderance of the evidence is against finding that the Veteran manifested a mental health disorder, an acquired psychiatric disorder, or posttraumatic stress disorder (PTSD) in service or within one year of separation from service, or that his death was in any way causally or etiologically related to service. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1154(a), 1154(b), 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection for the Cause of the Veteran's Death The record indicates that the Veteran died as a result of cutaneous burn injuries related to a trailer propane explosion. See April 2017 BVA Video Conference hearing transcript. The Appellant seeks service connection for the cause of the Veteran's death based upon the theory that the Veteran's death was not an accident. Rather, she believes the Veteran committed suicide as the result of a mental condition he developed during service and/or as a result of his experiences in service (i.e., that he suffered from PTSD). In this regard, the Appellant testified that on the day of the explosion, the Veteran opened a propane container inside their trailer and then stepped outside where the Appellant was located. The Appellant reported that she could smell propane from outside the trailer; and that she expressed concern to the Veteran that there was a propane leak or something of that nature. In response, the Veteran stated that there was no leak; that he had opened a propane container inside the trailer as he wanted to remove "some of the remaining propane." He then went back inside the trailer despite the Appellant's expressions of concern; and the trailer then exploded. Id., p. 5. Based upon the foregoing, the Appellant contends that it is as least as likely as not that the Veteran intended to commit suicide when he purposely entered their trailer on the day of the explosion after purposely opening a propane container inside. See BVA hearing transcript; statements; post-service medical records. Further, she contends that the Veteran's suicidal thoughts and subsequent suicide were the result of a mental health condition the Veteran manifested as a result of service. Id. For reasons set forth below, the Board finds that the preponderance of the evidence is against this claim. As such, the appeal must be denied. Dependency and indemnity compensation is 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 as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as 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. § 3.12(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it 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)(1). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. In the present case, at the time of death, the Veteran had been awarded service connection for athlete's foot and assigned a 10 percent disability rating. He was not service-connected for any other disabilities. As set forth above, the Veteran's certificate of death reflects that he died on December [REDACTED], 2011, as a result of cutaneous burn injuries. Chronic obstructive pulmonary disease (COPD) was listed as a condition contributing to death but was not a condition "resulting in the underlying cause" of death. See certificate of death. The Appellant has not argued that the official cause of the Veteran's death is related to either a service-connected disability or a disability for which the Veteran was seeking service connection at the time of death. Rather, as set forth above, she contends that the Veteran's death from cutaneous burn injuries was not accidental, but was the result of suicide. Further, she argues that the Veteran's suicide was the result of a severe mental health condition that should have been service-connected because it either manifested in service, manifested within a year of separation from service and/or was related to incidents/experiences the Veteran had during service. In support of her claim, the Appellant testified during her BVA hearing that the Veteran suffered from depression and PTSD. She stated that she and the Veteran were married in 1982, over 20 years after the Veteran separate from service. She testified that during their marriage, the Veteran told her of many of his experiences in service, to include his observation of a plane crash and being involved in the crash clean-up and its resulting exposure to the bodies of deceased servicemen; and that he was also exposed to traumatic incidents related to is MOS (military occupational specialty) as a supply helper/air police helper/aircraft missile maintenance helper. See BVA hearing transcript; see also letter from the Appellant dated in September 2012 (in a handwritten statement, the Appellant essentially reported that the Veteran was suicidal). The Appellant also submitted a letter dated in November 2012 from the Veteran's VA psychiatrist H.G., in which Dr. H.G. reported that he was treating the Veteran for severe PTSD prior to his death and that the Veteran had expressed suicidal ideation on several occasions. Dr. H.G. stated that the Appellant reported to him that on the day of his death, she had warned the Veteran not to go into their travel trailer because she smelled propane; but the Veteran ignored her. He went on to state that the Appellant reported that about five (5) minutes after the Veteran entered the trailer, it exploded. The Veteran was inside the trailer and incurred fatal injuries. Dr. H.G. indicated that the Veteran last visit to VA for mental health treatment was in December 2011. He did not return for treatment after expressing suicidal thoughts. He died on December [REDACTED], 2011. In closing, Dr. H.G. opined that it was more likely than not that the Veteran's death was a completed suicide resulting from service-connected depression and PTSD. Additional evidence associated with the claims file in support of the Appellant's claim consists of a duplicate copy of a November 1999 letter from a private medical doctor who diagnosed the Veteran was depressive neuroses that she indicated required anti-psychotic medications; that the Veteran had difficulty with anger control; and that he experienced a great deal of difficulty with forgetfulness. A psychiatric assessment report and psychological evaluation report contained in the claims file dated in August 1997 reflects that the Veteran was essentially diagnosed at that time with chronic PTSD with delay onset and dysthymia as a result of his experiences in service. VA medical records dated from 2007 to 2011 have also been associated with the claims file. These records reflect a diagnosis of PTSD, reports of suicidal ideation without intent, and the Veteran's erratic psychiatric medication compliance. In evaluating the Appellant's claim, the Board has reviewed all evidence of record. After doing so, the Board sympathizes with the Appellant for her loss, and acknowledges her sincere belief that the Veteran's life-long mental health problems developed as a result of his experiences in service. However, a review of the record in its entirety clearly reveals that at the time of death, the Veteran was not service-connected for any nervous disorder, depressive disorder, acquired psychiatric disorder, PTSD or any other mental health disorder despite his numerous attempts to obtain service connection for his mental health condition. Nor is there any evidence of record indicating that he should have been. A review of the record reveals that the Veteran was initially denied service connection for a nervous condition in a July 1971 rating decision, over 10 years after he separated from service. The RO denied service connection after reviewing VA hospitalization records related to the Veteran's diagnosis of depressive reaction; and a June 1971 VA examination report that diagnosed the Veteran with emotionally unstable personality. Thereafter, the Veteran was denied service connection in December 1992 for PTSD. Rating decisions dated in February 1996 and May 1996 found that new and material evidence had not been submitted to reopen the Veteran's previously denied claims of entitlement to service connection for a nervous condition to include PTSD and/or emotional instability. A rating decision dated in June 1996 found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for depressive neurosis. Thereafter, a July 1996 rating decision found that new and material evidence had not been submitted to reopen a claim for service connection for a nervous condition. A March 1997 rating decision found that new and material evidence had not been submitted to reopen a claim for PTSD to include dysthymia, depression, and sleep disorder. Thereafter, a September 1997 rating decision again denied service connection for PTSD. Rating decisions dated in January 1998 and September 1999 found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a nervous disorder that included PTSD, neurosis, depression, and dysthymia. In January 2004, the Veteran testified at a BVA hearing as to whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, to include PTSD. The Appellant and a friend accompanied the Veteran to the hearing. During the hearing, the Veteran testified about PTSD stressor events he reported occurred in service, since the Veteran had previously been denied service connection based upon the lack of a verified PTSD stressor. Thereafter, in a July 2004 BVA decision, the Board determined that new and material evidence had been submitted to reopen the Veteran's claim and remanded the Veteran's claim on its merits to the RO with instructions to obtain records, attempt to verify the alleged PTSD stressor events, and to afford him a VA examination. Subsequent to the completion of this development, the RO continued to deny the Veteran's psychiatric disorder claim and issued a supplemental statement of the case (SSOC) in December 2005 finding that the Veteran's alleged stressor events could not be verified. Thereafter, the appeal was returned to the Board. The Board remanded the Veteran's claim once again for development that included the Veteran being afforded a VA mental health examination. In October 2008, the Veteran was diagnosed with major depressive disorder that was in partial remission and schizoid personality disorder. He was found not to meet the diagnostic criteria for PTSD. Thereafter, the RO issued a November 2008 SSOC in which it continued to deny the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Board re-evaluated the Veteran's claim in April 2009. At that time, service connection for an acquired psychiatric disorder to include PTSD was denied on the merits. Subsequent to the submission of additional lay statements, and several pages of medical records, the RO issued a rating decision in May 2011 that found that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for a nervous disorder, to include PTSD, neurosis, depression and dysthymia with emotionally unstable personality. The Veteran was notified of that decision that same month, but did not appeal. As such, the Veteran did not have any pending claims before the RO or the Board at the time of his death in December 2011. Thus, despite the Veteran's PTSD diagnosis set forth in his post-service medical records and private examination reports contained in the claims file, the Veteran was not service-connected for PTSD at the time of his death and did not have a claim of entitlement to service connection for PTSD pending at the time of his death. In fact, although the Veteran attempted to obtain service connection for PTSD since the beginning of the 1970's, his requests were either denied due to an inability to verify his numerous alleged stressor events or because his symptomatology was found not to meet the diagnostic criteria for a medical diagnosis of PTSD. See, e.g., February 2007 BVA decision (in the body of its remand, the Board set forth "stressor evidence" that consisted of approximately nine different service events referenced by the Veteran in various testimony, statements and medical records in support of his PTSD service connection claim); October 2008 VA examination report (the Veteran was diagnosed with major depressive disorder in partial remission and schizoid personality disorder; he was not diagnosed with PTSD). In regards to the Veteran's claims of entitlement to service connection for a nervous disorder, dysthymia, depression, major depressive disorder, a mental health disorder and/or any additional acquired psychiatric disorder (other than PTSD), the record clearly reveals that these claims were also evaluated and denied by VA on numerous occasions prior to the Veteran's death. In this case, the Appellant has essentially submitted new evidence as to the Veteran's suicidal mentality during the period prior to his death that was clearly related to his long-standing mental health condition. However, a review of the evidence as a whole reveals no competent or credible evidence of record linking the Veteran's post-service mental health conditions with his period of service. In fact, the preponderance of the evidence clearly has been (over the past four decades ) and currently is against the proposition that the Veteran's post-service mental health disorders manifested in service or as a result of service; and as such, his death as a result of an accident or suicide is not related to any incident or injury that occurred in service. Therefore, the cause of his death by suicide or accident cannot be service-connected. In making this decision, the Board notes for the record that it has considered whether VA should have obtained a medical opinion specifically in relationship to the Appellant's cause of death claim. See 38 U.S.C. § 5103A(a). However, because the substance of the Appellant's claim revolves around the question of whether the Veteran procedurally should have been service-connected for a mental health disorder (to include PTSD) that allegedly contributed to his death and not whether the Veteran's death was the result of an already service-connected mental health disability, the Board finds that no reasonable possibility exists that a medical opinion would be of assistance in substantiating the Appellant's claim. See, e.g., Wood v. Peake, 520 F.3d 1345, 1348-49 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Here, the record on appeal clearly contains post-service medical evidence indicating that the Veteran had been diagnosed with PTSD prior to death based upon stressor events that VA attempted, but could not, confirm. The claims file contains medical and lay evidence pertaining to the Veteran's previously denied claims of entitlement to service connection for an acquired psychiatric disorder other than PTSD. However, this evidence had all been previously considered and rejected by VA prior to the Veteran's death for the reasons set forth in the rating decisions and Board decisions referenced above. Thus, the totality of the evidence reveals that the Veteran tried on numerous occasions to obtain service connection for a mental health disorder and/or PTSD he contended was related to service; and was procedurally denied. A medical opinion regarding the question of whether the Veteran's actions on the day of his death were related to suicide or to an accident would be of no probative value in the adjudication of the Appellant's claim. Thus, the most probative evidence of record does not show that the cutaneous burn injuries that caused the Veteran's death were related to service; or that his post-service diagnosis of COPD was related to service. As such, service connection for the cause of the Veteran's death cannot be granted based upon these conditions. In addition, there is absolutely no evidence of record that indicates in any way that the Veteran's service-connected athlete's foot was related to his death. Therefore, in light of the foregoing, the Board finds that the preponderance of the evidence is against the Appellant's claim of entitlement to service connection for the cause of the Veteran's death. In reaching this decision, the Board finds that the "benefit of the doubt" rule is not for application since the preponderance of the evidence is against the Appellant's claim. As such, the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs