Citation Nr: 19103671 Decision Date: 01/15/19 Archive Date: 01/15/19 DOCKET NO. 10-20 024 DATE: January 15, 2019 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran’s death certificate reflects that he died in March 1982 as a result of suicide with the immediate cause of death listed as a gunshot wound to the head. 2. A disability of service origin did not cause or contribute to the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1961 to September 1980. He died in March 1982 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2008 by a Department of Veterans Affairs (VA) Regional Office. The Board remanded the case in April 2014 and April 2016 for additional development and it now returns for further appellate review. In connection with her request, the appellant was scheduled for a Board hearing before a Veterans Law Judge in July 2013, which was later rescheduled per her request to November 2013. The appellant again requested that her hearing be rescheduled and, in April 2014, the Board remanded the case in order to do so. Such hearing was scheduled for September 2014. As noted in the April 2016 remand, while notice of the hearing was returned as undeliverable, the appellant has not requested that her hearing be rescheduled and, consequently, the Board found that her request for a hearing was withdrawn. 38 C.F.R. §§ 20.702(d), (e), 20.704(d), (e). Entitlement to service connection for the cause of the Veteran's death. The appellant contends that the Veteran’s cause of death as a result of suicide by a self-inflicted gunshot to the head was due to an acquired psychiatric disorder incurred during his almost 20 years of service, to include as a result of a skull fracture/concussion sustained in an in-service motor vehicle accident (MVA). 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 the veteran’s death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). 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. For claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, the law does not preclude a Veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 Fed. Cir. (2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s death certificate reflects that he died in March 1982 as a result of suicide with the immediate cause of death listed as a gunshot wound to the head. He was not service-connected for any disability during his lifetime. The Veteran’s service treatment records are entirely negative for any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder, and he denied all relevant symptomatology. However, such reflect that, in September 1966, he was a passenger in an MVA where he incurred a slight concussion. Additionally, in September 1972, the Veteran had another in-service MVA and was hospitalized until October 1972. In this regard, it was observed that the truck he was driving turned over, and he was ejected and hit his head on the concrete. He was diagnosed with a concussion, cervical strain, and linear skull fracture. His physical examination revealed that the Veteran was lethargic, oriented, and had alcohol on his breath. The remainder of his service treatment records are negative for any residuals of a concussion or skull fracture. The Veteran’s service personnel records are likewise negative for any indication that he had an acquired psychiatric disorder. In this regard, such paint a picture of an exemplary leader without any mention of a psychiatric disorder, alcohol abuse, or suicide attempts. Rather, such show that he was only reprimanded at the beginning of his career in 1962 for drinking as a minor and for a few hours of unauthorized leave, and some of his performance evaluations reveal that he sometimes lacked diplomatic skills while dealing with others. The Board further acknowledges that such records reflect the occasional use of alcohol during service. Specifically, in addition to his 1962 reprimand for drinking as a minor, the September 1972 records pertinent to his MVA reflect that the Veteran reported that he did not remember the details of the accident and had prior heavy alcohol intake. He also said he drank two six-packs of beers per week. In another related note, acute alcohol use was observed, but no chronic alcohol use was noted to be indicated. Nonetheless, the Veteran was ordered to be given one can of beer per twice a day during his hospital stay, and an October 1972 record noted “rehab today,” but it is not clear whether it refers to alcohol or physical therapy for his cervical strain. However, a February 1977 record, made in connection with treatment for the Veteran’s appendicitis, reflects only the occasional use of alcohol. Post-service records reflect the Veteran had a third MVA in March 1981. At such time, he ran his car into a van, was found semi-comatose, and complained of pain in his face and abdomen. Laboratory work reflects that the Veteran had alcohol in his system. The remainder of the Veteran’s post-service treatment records are negative for any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder or residuals of his in-service concussion or skull fracture. In September 2018, a VA examiner reviewed the entirety of the record, to include the Veteran’s service and post-service treatment records, and the appellant’s lay statements, and opined that it was less likely than not that the Veteran had an acquired psychiatric disorder that had its onset during service, or that his concussion/skull fracture resulting from his in-service MVA contributed or resulted in his cause of death. In support of such opinion, he noted that a review of the service treatment records showed no diagnosis of any mental condition beginning in service. In this regard, in a June 1967 medical history, the Veteran denied nervous trouble of any sort, depression, or excessive worry, and no clinical findings pertinent to a psychiatric disorder were noted. Additionally, following his September 1972 MVA and treatment for his concussion, cervical strain, and linear skull fracture, the Veteran was found fit for duty and returned thereto. Further, examinations conducted in March 1974 and June 1980 were negative for any clinical findings pertinent to a psychiatric disorder. Consequently, the examiner found that there was no evidence of a chronic psychiatric disorder and, therefore, no nexus to service could be made. Furthermore, with specific regard to the Veteran’s skull fracture, the examiner noted that current medical literature regarding skull fractures, traumatic brain injuries, and post-concussion syndrome reflected that patients recovered fairly quickly without long term sequalae. The Board affords great probative weight to the VA examiner’s September 2018 opinion as he considered all of the pertinent evidence of record, as well as relevant medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board observes that, in his November 2018 Appellant’s Post-Remand Brief, the appellant’s representative argued that, if the Board was unable to grant service connection for the cause of the Veteran’s death, it was requested that the Board exercise its authority under 38 C.F.R. §§ 3.328 and 20.901(d) to request an independent medical opinion (IMO) from an expert outside of the VA as the evidence is in conflict as to whether the Veteran suffered from a mental health disability that caused him to commit suicide. In this regard, the provisions of 38 C.F.R. §§ 3.328 and 20.901(d) provide for an IMO when the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an IMO. In the instant case, the Board finds that an IMO is not necessary as the evidence is not in conflict as to whether the Veteran suffered from a mental health disability that caused him to commit suicide. Specifically, as noted previously, VA regulations presume that an individual who commits suicide is mentally unsound. 38 C.F.R. § 3.302. Furthermore, such is not the relevant inquiry in the instant matter. Rather, the question before the Board is whether an acquired psychiatric disorder related to service, or residuals of an in-service concussion and/or skull fracture, caused or contributed to the Veteran’s death. In this regard, as will be discussed below, the appellant is not competent to offer such opinion and there is no medical opinion supporting such a conclusion. Rather, the only competent opinion addressing such matter is the September 2018 VA examiner’s opinion. Consequently, there is no outstanding medical question of obscurity, complexity, or controversy that justifies an IMO. Therefore, the Board finds that referral for such opinion is not warranted. Furthermore, the appellant’s representative has not offered any argument that the September 2018 VA examiner’s opinion is inadequate to decide the case. Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). With respect to the appellant’s contention that the Veteran’s suicide was due to an acquired psychiatric disorder incurred during his almost 20 years of service, to include as a result of a concussion and/or skull fracture sustained therein, the Board notes that, as a registered nurse, she may be competent to recognize symptoms of an acquired psychiatric disorder. However, the Board finds that she is not competent to diagnose such a disorder or offer an opinion as to whether such disorder is related to the Veteran’s military service, to include his in-service injuries. In this regard, as a nurse, she only has generalized knowledge regarding a wide variety of disorders, and there is no evidence that she has specialized training in psychiatric disorders. Consequently, the appellant does not possess the requisite training and experience necessary to address such a complex medical matter and, therefore, is considered a lay person in regard to such matter. Further, the diagnosis and etiology of a psychiatric disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of psychiatric disorder, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the appellant’s opinion as to the etiology of the cause of the Veteran’s death is not competent and, consequently, is afforded no probative weight. With respect to the appellant’s report that the Veteran exhibited symptoms of a psychiatric disorder during service and his September 1972 and March 1981 MVAs were suicide attempts, the Board finds her statements to be of diminished probative value as she did not know the Veteran during his military service, or at the time of such accidents. Specifically, as she reported in a May 2018 statement, she met the Veteran in April 1981. Furthermore, the record reflects that they began living together in May 1981 and married in September 1981. Consequently, there was no way for her to know how the Veteran behaved during service, or what his intentions were at the time of his September 1972 and March 1981 MVAs. Additionally, while the appellant has alleged that the military was aware that that the Veteran was an alcoholic and suicidal during service, such statements are not supported by the contemporaneous evidence of record. Specifically, as noted previously, while the Veteran’s service records show that he did drink alcohol, there was no notation of a diagnosis of alcoholism or alcohol use disorder. Furthermore, such are entirely negative for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder and the Veteran denied all relevant symptomatology. Rather, such reflect that the Veteran was a very high performing service member. Finally, to the extent that the Veteran had a problem with alcohol in service, or subsequently had an alcohol use disorder as a result of service, the Board notes that, for claims filed after October 31, 1990, as is the case here, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. Further, as service connection for an acquired psychiatric disorder has not been established, secondary service connection for an alcohol use disorder is likewise not warranted. Therefore, based on the foregoing, the Board finds that a disability of service origin did not cause or contribute to the Veteran’s death. Consequently, service connection for the cause of the Veteran’s death is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim of service connection for the cause of the Veteran’s death. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Almosd, Associate Counsel