Citation Nr: 1817982 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 09-46 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death and for dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Shah, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to December 1985. He died in May 2008. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In January 2012, the appellant testified at a travel board hearing before the undersigned. A transcript of the hearing is of record. This matter was remanded by the Board in May 2012 for additional development. In a September 2016 decision, the Board denied entitlement to service connection for the cause of death and entitlement to DIC benefits under 38 U.S.C. § 1318. In response to the September 2016 decision, the Veteran appealed the decision to the Court of Appeals for Veterans Claims (CAVC). A Joint Motion for Remand (JMR) was filed and on September 14, 2017, the CAVC issued an Order returning the case to the Board for action consistent with the JMR. In the JMR, the parties agreed that in the September 2016 decision, the Board should have further addressed whether the duty to assist was satisfied, specifically whether a reasonable possibility exists that procuring a VA medical opinion would aid in substantiating the claim. The parties agreed to remand the CAVC appeal for readjudication consistent with the foregoing. FINDINGS OF FACT 1. The Veteran died in May 2008 from blunt force trauma caused by being struck by cars while a pedestrian. 2. The Veteran was noted in service to have had alcohol abuse and explosive personality disorder; no other psychiatric disorder was present in service. 3. There is no competent or credible post-service evidence of psychiatric disability, other than alcohol abuse. 4. The Veteran's death was not the result of suicide. 5. There is no competent or credible evidence linking the Veteran's death to service. 6. At the time of the Veteran's death, decades after service, service connection was not in effect for any disability. 7. The Veteran was not a former prisoner of war. 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. §§ 1131, 1310 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310, 3.312 (2017). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board first notes that, consistent with Fletcher v. Derwinski, 1 Vet. App. 394 (1991), the record has been reviewed to ensure a critical examination for the justification of the decision. The JMR did not identify any deficiencies in the prior Board decision's reasons and bases, including the factual background or analysis. Nor has the Board discerned any such deficiencies with a second review. The basis of the JMR concerned a potential violation of the duty to assist, which the Board will address below. No further evidence or argument was added to the record following the JMR. The Board is satisfied that the below decision responds to the Court's concerns in Fletcher. VA has certain notice and assistance duties pursuant to 38 U.S.C.A. § 5103(a) and 5103A (2012), as well as the implementing regulation at 38 C.F.R. § 3.159 (2017). The record reflects that the appellant received 38 U.S.C.A. § 5103(a)-compliant notice in an August 2008 letter. VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. 38 U.S.C. § 5103A, Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008). For a DIC claim, VA's duty to assist is properly analyzed under 38 U.S.C. § 5103A(a), which requires only reasonable efforts to help an appellant substantiate a claim. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2009); see Wood, 520 F.3d at 1347. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. As to a medical opinion, VA has not obtained one in connection with the appeal, but the Board finds that a medical opinion is not required. As will be discussed in detail below, the appellant contends that the Veteran's death was actually a suicide, in turn related to a psychiatric disorder she believes originated in service. The service treatment records are silent for any reference to a psychiatric disorder for which service connection may be granted (primary service connection for alcohol abuse is prohibited by law and regulation, and personality disorders are prohibited by regulation). The competent and credible post-service evidence is negative for evidence of an actual psychiatric disorder at any point following service (and again, primary alcohol abuse and personality disorders are not the types of disorders for which service connection may be awarded). Nor is there any competent or credible evidence establishing that the Veteran's death was a suicide, or that his death was otherwise related to service. To obtain a medical opinion under these circumstances, where there is no competent or credible evidence of psychiatric impairment in service or at any point after service, would be to invite the examiner to offer an opinion based solely on speculation. Such an opinion, as it could not be supported by the Veteran's actual medical history, would be of no probative value, and consequently would not assist in substantiating the claim. Consequently, the Board finds that a medical opinion is not required in this appeal. 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 (2012); 38 C.F.R. § 3.5 (2017). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that the service-connected 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. 38 C.F.R. § 3.312(a) (2017). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires: (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Personality disorders are not disabilities for VA purposes. See 38 C.F.R. §§ 3.303, 4.9, 4.127 (2017); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible if there is evidence of additional disability due to aggravation during service by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. Payment of compensation for a disability that is a result of one's own alcohol abuse is precluded by Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388. Moreover, Section 8052 also amended 38 U.S.C. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(n), 3.301. Factual background According to the June 2008 death certificate, the Veteran died as a result of blunt force trauma injuries and the manner of death was declared accidental. The Veteran was not service-connected for any disability at the time of death. The appellant provided testimony and submitted multiple lay and acquaintance statements asserting that the Veteran's death was not accidental, but rather was suicide. Specifically, she asserts that the Veteran developed a psychiatric disorder in service for which he was treated, attempted suicide twice while in service, received post-service treatment for a psychiatric disorder, and committed suicide by intentionally placing himself into oncoming traffic. A review of the Veteran's service treatment records (STRs) show that the Veteran was diagnosed with alcohol dependency and explosive personality disorder. A June 1983 STR notes that the Veteran "made a swing in frustration" and his hand went through a window resulting in lacerations to his arm. A December 1984 STR shows that the Veteran was referred to sick bay for possible alcohol abuse. The Veteran was diagnosed with alcohol abuse and physical dependence. An August 1985 STR notes that the Veteran was treated after putting his arm through a window after a violent outburst. While the Veteran was admitted for treatment he was observed hitting a candy machine with his head and forearm, knocking a clock off the wall and hitting a child in the head. He was placed in leather restraints. The Veteran was diagnosed with intermittent explosive disorder and a history of alcohol abuse. The August 1985 STR notes a recommendation that the Veteran be admitted and evaluated by psychiatry. A subsequent August 1985 psychiatry note shows that the Veteran was referred to a stress coping skills group. Another August 1985 STR noted a history of headaches and being followed by psychiatry. The Veteran was noted to have a variable mood with suicidal thoughts in the past. The physician provided a diagnosis of explosive personality disorder. Lastly, the Veteran's November 1985 separation examination noted abnormal psychiatric condition with a diagnosis of explosive personality disorder. Post-service treatment records show that the Veteran went through a substance abuse treatment program (SATP) group between November 1999 and May 2000. The SATP notes show that the Veteran was treated for chemical dependency. A May 2003 VA Homeless Veteran Outreach Assessment shows the Veteran denied any major psychiatric problems but admitted to situational depression and tension. In a May 2010 Statement in Support of Claim, the appellant asserted that following an incident in service in which the Veteran's ship was held hostage in 1979/1980, and in which the Veteran allegedly had a gun held to his head, the Veteran began drinking and abusing drugs and made two subsequent in-service suicide attempts. In addition, the appellant asserted that the Veteran's death was not an accident but actually suicide. A May 2010 statement from M.W. reports that the Veteran "always displayed suicidal behavior" and "talked about killing himself constantly" while taking many chances. M.W. also reported that the Veteran spent a lot of time in a grave yard and stated that he wished to go home to his mother who was deceased. In addition, M.W. reported that he was talking with the Veteran "prior to him running out in front of the on-coming car" and that he believed the Veteran ran in front of the car to commit suicide. During a March 2011 DRO hearing the appellant testified that after the Veteran returned home from a six month deployment in 1980 he began to manifest a psychiatric disorder. The appellant further testified that the ship the Veteran was deployed on was held hostage for two hours after they "went into enemy lines." After the Veteran returned home the appellant witnessed him sitting in the corner of a room crying, screaming and holding his head. In addition, the appellant testified that the Veteran self-medicated with alcohol and abused her physically. Further, the appellant testified that the Veteran was treated for a psychiatric disorder at the VA after his discharge, but that the treating physician said his problem was more related to alcoholism than anything else. Regarding the fatal car accident, the appellant testified that after the Veteran was hit by the first vehicle M.W. came to his aide but that the Veteran stated "I'm already dead" prior to being hit by a second vehicle. During a January 2012 Travel Board hearing, the appellant testified that the Veteran first experienced psychiatric problems around December 1979 when the ship he was stationed on crossed into enemy waters and went "into a countdown." The appellant further asserted that during this incident the Veteran "went into an emotional thing" worried about his family and had to be calmed down by the Petty Officer. In addition, the appellant testified that the Veteran was treated for a psychiatric disorder during service including treatment for suicide attempts, was court martialed due to his condition, and was treated for a psychiatric disorder after service. In one in-service incident stated to have occurred in Japan, the Veteran left her and their children at a park, caught a train and forgot who he was. In another service related incident that occurred in San Francisco the Veteran stopped his car opened the door and ran away. Following this incident the appellant asserted that the Veteran stated he "can't take this no more." Additionally, the appellant stated that the Veteran was treated with shots and pills, although she could not read his medication record to ascertain what medications the Veteran was placed on. Lastly, another incident that led to the Veteran's court martial, the appellant asserted that they got into an argument resulting in her fingers being crushed in a door. Regarding the Veteran's fatal accident, the appellant testified that the Veteran intentionally took his life due to his psychiatric disorder by either throwing himself into, or walking into the path of, oncoming vehicles. In a February 2012 statement, C.S. asserted that the Veteran called him shortly before he died and the Veteran stated that he had received bad news after a consultation with a doctor, and "could not take this life anymore." Thirty minutes later C.S. reported that he received a phone call that the Veteran had been hit by two automobiles. Analysis The appellant contends that the Veteran had an acquired psychiatric disorder that resulted in suicidal ideation, which, in turn, caused the Veteran to effectuate his suicide by intentionally putting himself into oncoming traffic. The service treatment records are silent for any competent evidence of a psychiatric disorder eligible for service connection. Although an August 1985 STR notes that the Veteran had a variable mood with suicidal thoughts in the past, and that the Veteran was treated for psychiatric symptoms, when the symptoms were evaluated, the treating clinicians attributed them to a personality disorder and to alcohol abuse. Personality disorders are not disabilities for VA purposes. See 38 C.F.R. §§ 3.303, 4.9, 4.127 (2017); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible if there is evidence of additional disability due to aggravation during service by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. That is not the case in the instant appeal. The service records show that when the Veteran would discuss the sources of his stress, he would refer to having a wife and kids with no money and no house. Although the appellant points to certain events in service she feels led to a psychiatric disorder; the clinicians in service did not make the same findings, and offered no suggestion that the Veteran's personality disorder underwent aggravation from superimposed injury. As to the Veteran's alcoholism, payment of compensation for a disability that is a result of one's own alcohol or drug abuse is precluded by Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, (effective for claims filed after October 31, 1990, as in this case). Moreover, section 8052 also amended 38 U.S.C. § 105 (a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1 (n), 3.301. In short, the symptoms the Veteran exhibited in service were attributed to disorders, namely personality disorders and alcoholism, for which service connection would not, in any event, be available. The Board notes that although the appellant describes a history of multiple suicide attempts by the Veteran in service, the service treatment records themselves do not corroborate her account. The records note only that he had experienced suicidal thoughts in the past, which clearly is substantively different from suicidal attempts. (The Board notes that Bankhead v. Shulkin, No. 15-2404 (U.S. Vet. App. March 2017) is not for application, as that case not only involved the proper rating for a psychiatric disorder for which service connection was already in effect, but dealt with the different between active and passive suicidal ideation, as opposed to suicidal ideation versus suicidal attempt.). The Board finds that given the psychiatric evaluations of the Veteran in service during which he reported past suicidal thoughts, the absence of any reference to suicidal attempts supports the inference that no such attempts were undertaken. The Veteran was psychiatrically examined and clearly felt comfortable enough to report past suicidal ideation, and the Board finds it more than reasonable to expect he would have described suicidal attempts to his treating clinicians had they actually occurred. The Board consequently finds the appellant's statements and testimony concerning suicide attempts in service to lack credibility. As already noted, the treating clinicians in service attributed the Veteran's symptoms in service to personality disorders and to alcoholism. The clinicians did not suggest the presence of any other psychiatric disorder. To the extent the appellant believes the Veteran did have a psychiatric disorder other than personality disorders or alcohol abuse in service, the Board finds that the diagnosis of a psychiatric disorder is well beyond the capabilities of a layperson, particularly when multiple confounding mental health issues such as personality disorders and alcoholism are present. The fact that the treating clinicians in service identified two separate conditions to account for the Veteran's symptoms demonstrates that the diagnosis of a psychiatric disorder is not a matter a layperson such as the appellant can competently address. Even assuming she is competent to diagnose psychiatric disorders, the probative value of her opinion is outweighed by that of the treating clinicians in service, who clearly did have the experience, education and training to diagnose psychiatric disorders. In addition, the Board points out that the appellant's account of the Veteran's symptoms is undermined by the actual service treatment records, as already discussed. The post-service evidence does not establish the presence of a psychiatric disorder for which service connection is available. The post-service evidence discloses the presence of chemical dependence, for which, as alcohol abuse, service connection on a direct basis is not permitted. The Veteran, at times, reported situational depression, which the clinicians did not confirm in a diagnosis. With respect to the statements of the Veteran's acquaintance concerning suicidal ideation, the Board points out that their account of virtually constant suicidal ideation simply is not supported by the medical records. The Board finds that the medical records would be expected to show at least some mention of such ideation, given how constant the Veteran is claimed to have experienced those symptoms, and given that he did actually seek treatment for substance abuse. The fact that the treating clinicians, who were evaluating the Veteran's mental state, did not find such ideation is clear evidence against the account of suicidal ideation. More importantly, even assuming the Veteran did express suicidal ideation at times after service, the Board finds that there is no credible evidence he was experiencing suicidal ideation when he died, or that his death was otherwise a suicide. One acquaintance was with the Veteran when he died, but indicated only that in the past the Veteran had reported suicidal ideation; he notably did not indicate that the Veteran expressed such ideation shortly before being struck by a car. The Veteran's brother indicated only that the Veteran mentioned something about not wanting to live his life anymore, which does not in the Board's opinion, even suggest that the Veteran was experiencing suicidal ideation at the time, rather than experiencing frustration with his life experiences. In short, the Board finds that there is no competent or credible evidence demonstrating or even reasonably suggesting that the Veteran's fatal accident was suicide. Even were the Board to assume the Veteran's death was suicide, there is no competent evidence linking the suicide to service. As already indicated, service connection is not available for the Veteran's personality disorder or alcoholism, and consequently any opinion linking suicide to those disorders would not permit a grant of service connection. As discussed previously, there is no competent evidence of any other psychiatric disorder in service, and no competent evidence linking suicide to any disorder in service. The only opinion making such a link is that of the appellant, who is not competent as a layperson to diagnose psychiatric disability, and consequently is not competent to determine whether a suicide many years after service (particularly where, according to the Veteran's brother, this suicide would have occurred shortly after receiving bad news from a doctor) is etiologically related to service in some manner. In sum, there is no competent evidence of record indicating that the Veteran's death was related to his active service or that he had a service-connected disability that contributed substantially and materially to his death. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the cause of death is not warranted. 38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to DIC benefits pursuant to 38 U.S.C.A. § 1318 (a), benefits are payable to the surviving spouse and to the children of a deceased Veteran "in the same manner as if the death were service-connected." A "deceased Veteran" for purposes of this provision is a Veteran who dies not as the result of his/her own willful misconduct, and who was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability(ies) rated totally disabling. 38 U.S.C.A. § 1318 (b) (2012); 38 C.F.R. § 3.22(a) (2017). The service-connected disability(ies) must have been: (1) continuously rated totally disabling for a period of 10 or more years immediately preceding the Veteran's death; or (2) continuously rated totally disabling since the Veteran's discharge or other release from active duty and for at least 5 years immediately preceding death; or (3) the Veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. Id. The total disability rating may be schedular or based on individual unemployability under 38 C.F.R. § 4.16. 38 C.F.R. § 3.22(c) (2017). Claims under 38 U.S.C.A. § 1318 are adjudicated based on decisions rendered during the Veteran's lifetime. 38 C.F.R. § 20.1106 (2017). Initially the Board notes that the appellant does not contend that the Veteran was in receipt of a 100 percent rating at the time of his death, and the record shows that service connection in fact was not in effect for any disability at the time of his death. The Board also recognizes the appellant's May 2010 claim that the Veteran was held hostage while aboard ship sometime in 1979 or 1980. Thus, the appellant makes an allegation that the Veteran was a former prisoner of war which raises a claim for DIC benefits pursuant to 38 U.S.C.A. § 1318 (b)(3). The term "former prisoner of war" means a person who, while serving in the active military, naval or air service, was forcibly detained or interned in the line of duty by an enemy or foreign government, the agents of either, or a hostile force. 38 U.S.C.A. § 101 (32) (2012); 38 C.F.R. § 3.1 (y) (2017). The Board finds no credible evidence that the Veteran was a former prisoner of war as there is no evidence on file that the ship the Veteran served on during this time period (the U.S.S. Carron) was ever forcibly detained by an enemy or hostile force. In any event, even if Veteran's status was that of a former prisoner of war, the appellant would not be entitled to benefits pursuant to 38 U.S.C.A. § 1318 (b)(3) as the Veteran did not have a service-connected disability. Accordingly, the Board finds that DIC benefits, pursuant to 38 U.S.C.A. § 1318 is not warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of death is denied. Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs