Citation Nr: 20030263 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 15-35 653 DATE: April 29, 2020 ORDER Entitlement to service connection for cause of the Veteran’s death is denied. FINDING OF FACT The probative medical evidence of record does not establish an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), at the time of the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from April 1968 to April 1970, and again from May 1971 to September 1972, to include service in the Republic of Vietnam. The Veteran died in October 1977. The appellant is his surviving spouse. In October 2018, the appellant testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. The appellant’s claim was previously before the Board in May 2019 but was remanded for further development. Specifically, the Board required that the Agency of Original Jurisdiction (AOJ) obtain a VA medical opinion regarding if the Veteran had an acquired psychiatric disorder at the time of his death in October 1977. The required opinion was obtained on January 29, 2020. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ initially obtained an examination on December 21, 2019, and a negative opinion was provided on January 2, 2020. In a January 2020 brief, the Veteran’s attorney challenged the credentials of the examiner who provided the January 2, 2020 opinion under Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). The Board will not consider the January 2, 2020 opinion in this decision. Neither the Veteran nor his attorney have raised any other 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). 1. Entitlement to service connection for cause of the Veteran’s death The appellant claims entitlement to service connection for the Veteran’s cause of death. The Veteran died in October 1977. When a veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay dependency and indemnity compensation to such veteran’s surviving spouse, children, and parents. 38 U.S.C. § 1310. In a claim where service connection was not established for the fatal disability prior to the death of the Veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. 38 C.F.R. § 3.312. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). An October 1977 death certificate notes that the Veteran died of single, self-inflicted gunshot wound to the abdomen. The appellant contends that at the time of the Veteran’s death, he had PTSD due to service in the Republic of Vietnam. The appellant further contends that the Veteran’s suicide was due to PTSD. In May 2019, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board re-characterized the appellant’s claim for entitlement to service connection for cause of the Veteran’s death to include any acquired psychiatric disorder. After review of the medical evidence of record, the Board finds that entitlement to service connection for cause of death benefits is not warranted. The Veteran’s service treatment records are silent for complaints of or treatment for an acquired psychiatric disorder. The Veteran’s report of medical examinations completed in February 1970, May 1971, and August 1972, do not note an acquired psychiatric disorder. In addition, following a review of the Veteran’s claims file, to include the Veteran’s medical treatment history, a VA psychologist opined on January 29, 2020, that it was less likely than not that the Veteran had a psychiatric condition that was due to service. She stated that it could not be determined without speculation that the Veteran had an acquired psychiatric disorder prior to his suicide in 1977. However, instead of speculating, she then provided reasoning in support of a finding that the Veteran did not have a psychiatric disorder due to service. The psychologist explained that Drs. J. I. and H. K. determined that the Veteran had PTSD based on his DD214 showing service in Vietnam, his periods of AWOL, and descriptions of him by his family members. She explained that a history of AWOL “…does not indicate the presence of mental disorder symptoms. Military members are charged with time lost in a variety of scenarios.” She also explained that in the absence of other evidence, lay statements are not sufficient to diagnose a mental disorder without other evidence of disordered behavior or thinking. The VA psychologist reasoned: There are no mental health treatment notes, documentation of disordered behavior (i.e.: police reports), or other indicators that a mental disorder was present in the five years between [the Veteran’s] discharge and his suicide. Furthermore, suicide can be precipitated by many factors, to include relationship strain, mental health problems, legal problems, financial problems. She also explained that, [w]ithout evidence of a specific stressor and related sequelae, a diagnosis of PTSD cannot be made, in a living person or posthumously. Having served in a combat zone is not sufficient to determine that a specific stressor occurred and caused PTSD. It is therefore less likely as not that the [V]eteran had a psychiatric disorder that contributed to his 1977 suicide. The VA psychologist’s opinion is well-reasoned, highly probative evidence against the appellant’s claim that the Veteran had an acquired psychiatric disorder that was incurred during or caused by his period of active service. The Board also notes that the appellant has submitted two private medical opinions noting a diagnosis of PTSD at the time of the Veteran’s death. One from Dr. H. K. and one from Dr. J. I. The medical opinions were authored after review of the Veteran’s medical history and an interview with the appellant. The private medical opinions noted symptoms of depressive behavior, avoidance behavior, irritability, sleep disturbance, and poor concentration, but did not note a formal diagnosis of an acquired psychiatric disorder other than PTSD. Although the private opinions are probative evidence in support of a PTSD diagnosis, they are not probative evidence in support of a finding that a stressor occurred. Even if it were assumed that the Veteran had PTSD, as noted above, entitlement to service connection for PTSD cannot be established without an in-service stressor event. See 38 C.F.R. § 3.304(f). No specific in-service event has been identified by the evidence of record, including by the appellant. This includes any stressor related to fear of hostile military or terrorist activity. The stressor advanced by Dr. J. I. was generic, “Vietnam, Military Service.” Dr. H. K. did not identify a stressor. She only noted that the Veteran told the appellant, “…they were all kids who were scared to death” but the reason for the fear was not identified. The Veteran’s Armed Forces of the United States Report of Transfer or Discharge, DD-Form 214, notes service in the Republic of Vietnam. In statements and testimony, the appellant has asserted generally that the Veteran was troubled by his service in the Republic of Vietnam. However, the appellant’s statements and testimony have not identified a specific in-service stressor necessary for establishing PTSD. The record does not contain probative evidence of an in -service stressor. The appellant contends that the Veteran’s had an acquired psychiatric disorder incurred during or caused by his period of active service leading to his suicide. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, determining if the Veteran had an acquired psychiatric disorder at the time of his death requires medical inquiry into the Veteran’s psychological functioning. With regard to the specific issue in this case, whether the Veteran had an acquired psychiatric disorder at the time of his death, falls outside the realm of knowledge of the appellant in this case. See Jandreau, 492 F.3d at 1377 n.4. Psychological processes are internal and are not readily observable. The appellant in this case is not competent to provide an opinion that the Veteran had a mental condition which caused or contributed to his death. She has not been shown by the evidence of record to have the skills, experience, or medical training necessary to make a complex determination such as this. Her opinion is not competent evidence. The opinion of the January 2020 VA psychologist is of significantly more probative value than the appellant’s lay opinion. Based upon the evidence discussed above, the Board finds that the criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. The preponderance of the probative evidence of record weighs against the appellant’s claim. The benefit of the doubt doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Alemany v. Brown, 9 Vet. App. 518 (1996). Accordingly, entitlement to service connection for cause of the Veteran’s death is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.