Citation Nr: 21074696 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-55 582 DATE: December 16, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDING OF FACT 1. The Veteran's death certificate lists his cause of death as the result of a self-inflicted gunshot wound to the head. 2. At the time of his death, the Veteran was not service connected for any disabilities. 3. The evidence is in equipoise as to whether the Veteran's cause of death is etiologically related to his active-duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1154(b), 1310, 5107 (2018); 38 C.F.R. §§ 3.102, 3.302, 3.303, 3.312 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from May 1969 to October 1970, to include service in the Republic of Vietnam. He died in 1990 and the Appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA)Regional Office (RO). This case was previously before the Board in July 2021, at which time the issue currently before the Board was remanded for additional development. Following the issuance of a September 2021 statement of the case, the matter has been returned to the Board for appellate review. Service Connection Cause of the Veteran's Death The Veteran's death certificate shows that he died of a self-inflicted gunshot wound to the head. At the time of his death, he was not service connected for any disabilities. Nonetheless, the appellant asserts that he committed suicide as a result of a psychiatric disorder that was incurred during his combat service in Vietnam. Following review of the evidence of record, the Board is granting the appellant's claim. After a veteran's death, VA compensates certain beneficiaries, including surviving spouses, when the cause of death is a service-connected disability or the cause of death, while not service-connected, is related to service. 38 C.F.R. § 1310; 38 C.F.R. §§ 3.5 (a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran's death. 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Initially, the Board notes that the primary cause of the Veteran's death is not in dispute and that the evidence of record does not establish a reasonably adequate motive for his suicide. See 38 C.F.R. § § 3.302 (b)(2). As a result, his suicide is considered to have resulted from mental unsoundness rather than willful misconduct. Id. The remaining question, then, is whether the mental unsoundness that caused the Veteran to commit suicide was service-connected - that is, whether his mental unsoundness was associated with a service-connected condition. See DeLaRosa v. Peake, 515 F.3d 1319, 1323 (Fed. Cir. 2008) (explaining that entitlement to service connection for a psychiatric condition must be established before service connection for mental unsoundness, if presumed from a suicide, can be established). There is both favorable and unfavorable evidence that addresses that question. Service treatment records do not show complaints or contemporaneous reports concerning the Veteran's psychiatric disorders. Military personnel records reflect that the Veteran arrived in Danang, Vietnam on February 5, 1970 and participated in combat operations in Vietnam from February 6, 1970 to February 28, 1970. In the Veteran's October 1970 pre-separation medical examination report, the examiner noted no psychiatric abnormalities. During an August 1972 VA examination that did not focus on the Veteran's psychiatric disorders, the examiner noted no psychiatric abnormalities. In a September 1978 statement, the Veteran reported having misgivings about his service in Vietnam. A June 1987 non-VA treatment record reflects the Veteran had psychiatric treatment for three weeks and that he was diagnosed with major depression. During a March 1988 VA examination, the Veteran reported experiencing depression since 1981 and denied experiencing any significant psychiatric trouble related to service. The Veteran was diagnosed with adjustment disorder with mixed emotional features and moderate psychosocial stressor. A February 1991 letter from a Dr. W.B. notes that he treated the Veteran for classic PTSD with suicidal depression and that the Veteran's service in Vietnam was a vital proximate cause of the devastatingly painful and immobilizing illness from which he never fully recovered. In a November 1991 statement, the Veteran's friend, a J.J., reported that he knew the Veteran for twenty years and that the Veteran was emotionally isolated as a result of his service in Vietnam. During a January 1992 Board hearing, the Appellant testified that she witnessed first-hand the Veteran having psychiatric trouble after separation. In a November 2017 evaluation, a Dr. N.H. indicated that he was asked by the Appellant to review the claims file and provide an opinion as to the likely cause of the Veteran's suicide. The corresponding document report submitted by the Veteran reflects that Dr. N.H. reviewed an extensive portion of the available records pertaining to the period prior to the Veteran's passing. After considering this evidence, Dr. N.H. opined that the Veteran's PTSD and major depression were caused by his service in Vietnam, and that those PTSD symptoms were dormant until they were triggered by a work-related event in August 1983. In support thereof, Dr. N.H. detailed the Veteran's symptoms prior to his passing and related those symptoms to his experiences while in service. In a June 2019 evaluation, a Dr. J.M. indicated that he was asked by the Appellant to review the claims file and provide an opinion as to the likely cause of the Veteran's suicide. Dr. J. N. noted that he reviewed the entirety of the claims file. After considering the evidence of record, he opined that the Veteran's PTSD and major depressive disorder were caused by his combat experiences in Vietnam and were the primary causes of his death by suicide. In support thereof, Dr. J.N. referred to the substantial lay evidence of record reflecting that the Veteran was experiencing PTSD symptomatology prior to his passing that was directly attributable to his service-induced stressors. The Board finds that the November 2017 and June 2019 medical opinions are adequate because the examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no medical opinion of record to the contrary. As such, those medical opinions are the most probative evidence of record. (Continued on the next page) The Board concludes, in light of the Veteran's confirmed combat service, the psychiatric symptoms he, his widow, and friend credibly asserted manifested in connection with that service, and the November 2017 and June 2019 medical opinions, that the evidence relevant to the question of whether he had a service-related acquired psychiatric disorder at the time of his death diagnosed as PTSD is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Appellant and entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.