Citation Nr: 20032045 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 17-16 220 DATE: May 6, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran’s cause of death is related to service. 2. The Veteran’s cause of death was due to willful misconduct and was not in the line of duty. 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. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for dependency and indemnity compensation (DIC) benefits have not been met. 38 U.S.C. §§ 1310, 1312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died in October 2015 while serving on active duty. The Veteran’s ex-wife is the appellant and brought a DIC claim on behalf of one of the Veteran’s sons. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2016 administrative decision that denied entitlement to death benefits, to include DIC, on the basis that the Veteran’s death was due to his own willful misconduct and, thus not incurred in the line of duty. The Board previously remanded the case in February 2019 to the Agency of Original Jurisdiction (AOJ) for additional development. 1. Entitlement to service connection for the cause of the Veteran’s death is denied. The appellant seeks entitlement to service connection for the cause of the Veteran’s death. Specifically, she contends that the Veteran had a mental disorder at the time of his death that would render him mentally unsound and unable to engage in willful misconduct. At the time of his death, service connection was not in effect for any disabilities. Generally, in order to establish service connection for the cause of the Veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310 ; 38 C.F.R. § 3.312 . A veteran’s death is service-connected if it occurred in the line of duty, or took place during active service, unless it was the result of the veteran’s own willful misconduct or the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.1(k), (m). A service department finding that death occurred in the line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m). Willful misconduct refers to an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). However, a person of unsound mind is incapable of forming an intent which is an essential element of willful misconduct. 38 C.F.R. § 3.302(a)(2). The Veteran was on active duty when he died in October 2015 from acute intoxication from difluoroethane inhalation. A case summary prepared after investigation of the Veteran’s death explained that, on the day of his death, the Veteran failed to report for morning physical training, and he was found lying on the floor in his residence, deceased. Inspection of his residence revealed multiple empty cans of “dust off.” A post mortem report opined that there was no evidence to suggest that, prior to taking this substance, the Veteran had any mental defect or disease that would render him mentally unsound. In addition, it was stated that the Veteran had a history of alcohol and drug related incidents. On these bases, the Veteran’s death was deemed “Not In Line of Duty –Due to Own Misconduct.” In a February 2019 decision, the Board remanded the case to obtain an opinion to determine if there were any psychiatric disabilities present at the time of the Veteran’s death and if any disabilities were related to service. In February 2020, a VA examiner opined that the nature of the Veteran’s psychiatric problems related to substance abuse were deemed to be willful behavior and not associated or secondary to another psychiatric condition. The examiner further stated that Veteran’s alcohol use disorder was unrelated to any of his military experiences or directly related to life stressors. Additionally, the VA examiner opined that the Veteran’s death (acute intoxication from difluoroethane inhalation, or dust off cans) is less likely than not related to any psychiatric disability. The rationale was that there are no psychiatric diagnoses assigned other than those associated with substance abuse and willful behavior. Furthermore, the Veteran was assessed and denied other psychiatric symptoms other than substance abuse and difficulty with sleep. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the February 2020 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a thorough review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s cause of death was not related to service. Also, the examiner’s opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board places significant probative weight on the February 2020 medical opinion. As noted above, there is no causal connection shown between the Veteran’s service and his cause of death. Consequently, the Board is left without substantially probative evidence linking any service-connected disability to the Veteran’s death. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to DIC benefits pursuant to 38 U.S.C. § 1310. (Continued on the next page)   Dependency and indemnity compensation (DIC) benefits are payable to the children of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310. Children of the Veteran may establish entitlement to DIC in the same manner as if the Veteran’s death were service connected where it is shown that the Veteran’s death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former prisoner of war (POW) 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. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22(a). As previously discussed, the Veteran’s cause of death is not service-connected and the Veteran’s death was the result of willful misconduct. Additionally, the Veteran was neither in receipt of a totally disabling rating for a period of 10 years or more immediately preceding death; nor a period of not less than five years from the date of discharge at any time; nor was the Veteran a prisoner of war. Accordingly, the criteria for dependency and indemnity compensation benefits are not met. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Owaiian Jones, Law Clerk 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.