Citation Nr: 21009820 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-38 661 DATE: February 23, 2021 REMANDED Entitlement to dependency and indemnity compensation (DIC) benefits based upon service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran had active service from July 2000 to December 2012. The Veteran died in March 2016, and the appellant is his surviving spouse. The appellant testified before the undersigned Veterans Law Judge (VLJ) at an October 2020 virtual hearing, and a transcript of the hearing has been associated with the claims file. This matter comes to the Board of Veterans’ Appeals (Board) from a legacy appeal of a May 2016 rating decision. The Board acknowledges that the appellant subsequently submitted an August 2020 VA Form 10182 to opt into the modernized appeal system; however, she was subsequently advised by VA in December 2020 that because the rating decision on appeal was issued before February 19, 2019 and a related Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) dated on or after February 19, 2019 had not yet been issued, her appeal would remain in the legacy system. Entitlement to DIC benefits based upon service connection for the cause of the Veteran’s death is remanded. Following a review of the record, and as discussed below, the Board finds that a remand is necessary regarding the appellant’s claim on appeal in order to obtain relevant and outstanding records, as well as to obtain an expert medical opinion. First, the Board finds that remand is warranted to seek to obtain additional relevant records, including (a) any outstanding post-service psychiatric treatment records; (b) the autopsy report from the appropriate Commonwealth of Virginia vital records department; and (c) copies of any and all records associated with the Veteran’s homicide, including any records of court proceedings and town, county, or state police reports. While the record documents that VA previously requested such supporting documentation from the appellant, the appellant has reported, and the record supports, that she and her attorney have been unable to obtain police reports from the Town of Grundy police department, Buchanan County Sheriff’s Office, and the Virginia Department of State Police concerning the Veteran’s shooting death. The Board finds that upon remand, any and all supporting documents, including outstanding treatment records, autopsy reports, and police incident reports, should be sought and associated with the claims file. Additionally, the Board is mindful that the Veteran’s certificate of death indicates that his manner of death was by homicide. Notably, the appellant and the Veteran’s brother assert that the Veteran was experiencing an exacerbation of his service-connected PTSD at the time of his death. While a private psychiatric evaluation from the day prior to his death documents that the Veteran was not suicidal, the Board is mindful that an April 2017 letter from the Veteran’s treating practitioner documents that she believed the Veteran’s discussion of his military past with a new psychiatrist “brought these thoughts to the forefront of his memory and was associated with his anxious mood and iritic [sic] behavior on the night in question.” Given this indication that the Veteran’s behavior on the night of his death was related to his service-connected PTSD, the Board finds that an addendum medical opinion should be sought upon remand which specifically considers all relevant evidence of record. The matter is REMANDED for the following action: 1. Make all reasonable efforts, including requesting assistance and/or authorization from the appellant as necessary, to obtain: (a) any outstanding post-service psychiatric treatment records; (b) the autopsy report from the appropriate Commonwealth of Virginia vital records department; and (c) copies of any and all records associated with the Veteran’s homicide, including any records of court proceedings and police incident reports from the Town of Grundy police department, Buchanan County Sheriff’s Office, and the Virginia Department of State Police. 2. Provide the claims file to a VA examiner with psychiatric expertise for an addendum medical opinion to address whether it is at least as likely as not that the Veteran’s immediate cause of death was caused by the service-connected PTSD. The examiner is asked to review the entire claims file in rendering the requested addendum opinion. A copy of the below facts should be provided to the VA examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran had active service from July 2000 to December 2012. The Veteran died in March 2016, and the appellant is his surviving spouse • The Veteran’s certificate of death documents that he died in March 2016 as a result of a shotgun wound to the abdomen. The manner of death was noted to be a homicide. See VBMS entry with document type, “Death Certificate,” receipt date 04/03/2017. • A March 2016 private psychiatric evaluation the day before the Veteran’s death with Dr. Jay V. Narola, M.D., documents that the Veteran reported that he suffered from PTSD, anxiety, and insomnia. He reported that he served in Iraq for three years and that he had injuries from a roadside bomb explosion and a bullet to the elbow. He stated that he returned to the United States in December 2012 and found out that a colleague had killed his two children and his wife. The Veteran stated that he could not handle this and mentally broke down and was in a psychiatric hospital for seven days. He stated that prior to being hospitalized, he was close to committing suicide. He reported an experience in Iraq where he had to shoot a four-year old boy who had a bomb strapped to him and was coming close to his unit. He noted that he used to help these little children and the death of this boy particularly brought a lot of flashbacks with ongoing nightmares related to difference experiences and incidents. He reported feeling depressed, withdrawn, and socially isolated, with ongoing sleep impairment, feelings of helplessness, hopelessness, and worthlessness, in addition to impaired short-term memory, attention, and concentration. He also reported ongoing paranoia, with panic attacks, and reported that he could not go to crowded places where he could not cover his back and that he recently ended up in the ER for a panic attack that he thought was a heart attack. He stated that he used to see a VA psychiatrist but felt it was not helpful and stopped seeking help six or seven months before. Upon mental status examination, he appeared alert and oriented, with adequate grooming and hygiene. He displayed coherent speech, with no flight of ideas or looseness of association. His mood was anxious, sad, mad, and frustrated, and his affect was worried and depressed. He denied suicidal or homicidal ideation and hallucinations, but reported paranoia. His insight and judgment were limited to fair, but were overall adequate to make treatment management decisions. His diagnoses included PSTD, major depressive disorder (MDD) with paranoid features, panic disorder with agoraphobia, alcohol abuse versus dependence, and nicotine abuse. The physician stated that the Veteran was not suicidal or homicidal, and he understood that if he got into such a situation where he could not maintain safety, that he would go to the nearest ER and get treatment in an appropriate psychiatric facility. The physician advised that the Veteran should not be drinking any alcohol or doing any recreational drugs and regarding prescription medication the physician stated that he must stop Xanax and suggested continuing Trazadone and Lexapro. See VBMS entry with document type, “Fax Cover Sheet,” receipt date 05/20/2016, on pages 20-22. • An April 14, 2016 statement from the Veteran’s brother, J. B., documents that on the night of the Veteran’s death, the appellant called him and asked him to come talk to the Veteran about an exacerbation of his severe PTSD. See VBMS entry with document type, “Fax Cover Sheet,” receipt date 05/20/2016, on page 14. • An April 18, 2016 letter from the Virginia Department of State Police (VDSP) indicates that on March [], 2016, VSP was dispatched to the Veteran’s address and upon arrival, the Veteran was deceased from an apparent gunshot wound. See VBMS entry with document type, “Fax Cover Sheet,” receipt date 05/20/2016, on page 25. • An April 26, 2016 letter from the VDSP to an attorney, presumably for the appellant, documents that a freedom of information act (FOIA) request for records related to the investigation of the shooting death of the Veteran was denied as such records were excluded from FOIA as criminal investigative materials. See VBMS entry with document type, “Third Party Correspondence,” receipt date 05/30/2017, with “#1” in the subject field. • April 27, 2016 letter from the Buchanan County Sheriff’s Office (BCSO) to an attorney, presumably for the appellant, documents that BCSO requested an extension of time to respond to a request for the 911 calls and investigation report concerning the Veteran’s death. See VBMS entry with document type, “Third Party Correspondence,” receipt date 05/30/2017, with “#2” in the subject field. • A May 9, 2016 statement from the appellant documents that on the night of his death, the Veteran was experiencing an exacerbation of his nightmares and insomnia. She noted that the Veteran was anxious and requested help, including that his brother come visit. She further noted that the Veteran had a firearm and was mixing alcohol with Xanax, and that she eventually called 911 to get some help for the Veteran, who was suicidal. She stated that the Veteran had the gun to his head when the police arrived and that she was advised to go inside, after which she heard a loud shot and discovered the Veteran had been shot. See VBMS entry with document type, “Fax Cover Sheet,” receipt date 05/20/2016, on pages 15-19. Similar statements were made by the appellant during her October 2020 Board hearing testimony. See VBMS entry with document type, “Hearing Transcript,” receipt date 10/21/2020. • An April 3, 2017 letter from the Veteran’s primary treating practitioner, Tina M. Compton, MSN, FNP, of Buchanan Health Center, Inc., documents that she believed the Veteran’s discussion of his military past with a new psychiatrist “brought these thoughts to the forefront of his memory and was associated with his anxious mood and iritic [sic] behavior on the night in question.” See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 04/03/2017. • A July 7, 2017 letter from the appellant documents her assertion that the Veteran was murdered by the police after he tried to get help for his PTSD. She stated that she had tried to get a copy of the police report but was denied without a subpoena and stated that the attorney that represented her also did not have a copy of the police report. See VBMS entry with document type, “VA 9 Appeal to Board of Appeals,” receipt date 07/11/2017, on page 3. • VA is in the process of attempting to obtain additional evidence, such as (a) outstanding post-service psychiatric treatment records; (b) the autopsy report from the appropriate Commonwealth of Virginia vital records department; and (c) copies of any and all records associated with the Veteran’s homicide, including any records of court proceedings and police incident reports from the Town of Grundy police department, Buchanan County Sheriff’s Office, and the Virginia Department of State Police. Thus these records may have been added to the file since January 2021. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the claims file, the examiner is asked to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s service-connected PTSD and panic disorder: (1) singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto; (2) contributed substantially or materially to the Veteran’s death; (3) combined with another disorder to cause death; and/or (4) aided or lent assistance to his death. A complete rationale must be provided for all opinions expressed, with reference to relevant evidence of record and/or medical principles, as appropriate, including the April 2017 letter from the Veteran’s primary treating practitioner, which documents her belief that the Veteran’s discussion of his military past with a new psychiatrist on the day prior to his death “was associated with his anxious mood and iritic [sic] behavior on the night in question.” If the VA examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the VA examiner must provide the reasons why an opinion would require speculation. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.