Citation Nr: 21010153 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-27 116 DATE: February 24, 2021 ORDER Entitlement to service connection for the cause of Veteran's death is granted. Entitlement to service connection for death pension benefits is dismissed. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died November 11, 2016. The cause of death was blunt force trauma of the torso and left lower extremity due to a motorcycle accident. 2. During his lifetime, the Veteran was service-connected for posttraumatic stress disorder (PTSD). 3. Resolving all benefit of the doubt in favor of the appellant, the Veteran’s PTSD, substantially contributed to the cause of the Veteran’s death. 4. The award of death and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran’s death is a greater benefit than pension benefits and renders the nonservice-connected death pension claim moot. 5. There was no claim that remained pending or unadjudicated at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. § 3.312. 2. The claim of entitlement to nonservice-connected death pension benefits is dismissed as moot. 38 U.S.C. §§ 1541, 7105; 38 C.F.R. § 3.151. 3. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 5121; 38 C.F.R. §§ 3.57, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from April 1964 to March 1967, including combat in the Republic of Vietnam. The Veteran passed away on November 11, 2016. The appellant is the Veteran’s surviving spouse. The appellant testified before the undersigned Veterans Law Judge in November 2018; a transcript of the hearing is of record. By way of background, in February 2019, the Board remanded the appellant’s claims for further development. Subsequently, in September 2019, the Board denied the claims. The appellant appealed the case to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted the parties' Joint Motion for Remand (JMR), and remanded the appeal to the Board for action consistent with the terms of the JMR. Previously, the Board characterized the issues listed above as one issue; however, given the differing dispositions, for clarification purposes, the Board has separated the issues. Entitlement to service connection for the cause of the Veteran’s death The appellant is seeking service connection for the cause of the Veteran’s death. Specifically, the appellant contends that the Veteran’s cause of death is due to his service-connected PTSD. In an August 2019 statement, she explicitly stated that the Veteran had been recklessly driving motorcycles since he obtained his license and his state of mind had not been good. Service connection for the cause of the Veteran’s death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran’s death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and combined to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. “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 disease or injury primarily causing death.” 38 C.F.R. § 3.312(c)(3). Generally, minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). “There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.” 38 C.F.R. § 3.312(c)(4). The Veteran was service-connected for PTSD. During the Veteran’s lifetime, service connection was not established for any other disability. The death certificate indicated that the cause of death was blunt impact trauma of the torso and left lower extremity sustained in a motorcycle accident. Based on the medical evidence of record and when resolving the benefit of the doubt in favor of the appellant, the Board finds that service connection for the cause of the Veteran’s death is warranted. Here, the Board is faced with a conflicting medical record as to whether the Veteran’s PTSD substantially contributed to his death. In July 2019, after reviewing all the evidence of record, a VA examiner opined it was less likely than not (less than 50 percent probability) that the Veteran's service-connected PTSD was a causal contributing factor in his death due to blunt force trauma of the torso and left lower extremity from a motorcycle accident. The examiner explained it is possible that symptoms of PTSD including severe concentration impairment, reckless behavior, impaired judgment, or substance use effects secondary to PTSD could contribute to a motor vehicle accident. However, he noted in this case, this is considered less likely than not. The Veteran was never described in any notes as engaging in current risk-taking behaviors and there is no indication that recklessness caused the accident. His judgment and impulsivity were stated to be appropriate in notes in the last year of his life. Concentration difficulty is not described in notes other than in the note that his therapist wrote after his death. It is well established in epidemiological literature that motorcycles are at higher risk for accidents than other vehicles, and that the true cause of the accident is often difficult to determine, as is the case here, due to multiple possibilities that are difficult to reconstruct after the fact (e.g. over-taking mistakes, other vehicle right of way conditions, road conditions, driver error, driver impairment, driver recklessness, etc.). Though the cause of this accident is unknown, given that symptoms of PTSD that possibly could have, in speculation, contributed to it were not described as substantial in medical notes, he found it is less likely than not that the Veteran’s PTSD materially contributed to his death from the motorcycle accident. In contrast, in November 2020, the appellant’s representative submitted an October 2020 private medical opinion, which found that it is at least as likely as not that the Veteran’s PTSD substantially or materially contributed to his death in more than a mere causal manner. The examiner summarized the medical evidence of record and discussed various publication concerning PTSD and behavior. The examiner rationalized that at the time of death, the decedent was service-connected at 70 percent for PTSD, which is indicative of severe impairment in most major areas of life and was determined to be effectively unable to work because of this condition. He had a long-standing pattern of reckless, impulsive, and self-destructive behaviors which both the decedent’s spouse and grandson, with first-hand routine observations, described as worsening in the months, weeks, and days prior to death. He had already had multiple motorcycle accidents prior to his death. Both his spouse and grandson reported his preoccupation with motorcycles was ’unhealthy’ such that it resulted in excessive financial debt due to motorcycle-related purchases (much of which was never used or even opened), excessive isolation and avoidance of his family, increased irritability, worsening sleep, medication non-compliance, and failures to meet the most basic of expectations he had for basic day-to-day obligations as well as critical home repair work which had been area of skill and passion for him historically. The examiner continued that within this context, the decedent, with severe PTSD, including startle responses, intrusive thoughts regarding military trauma, physiological and psychological responses to such triggers, hypervigilance, concentration deficits, and reckless and self-destructive behaviors was riding his motorcycle, on a day full of triggers associated with military trauma, Veterans Day, to a War Memorial to which he never previously visited. The examiner concluded that based upon the psychological autopsy procedures, consistent with best practices in the area and with the American Association of Suicidology certification training in this area, the examiner opined it is at least as likely as not that the decedent’s PTSD contributed substantially or materially to death, in more than a mere casual manner. Importantly, a February 2017 VA psychologist treatment note indicated the Veteran suffered from PTSD and was not compliant with medication. His symptoms included reduced concentration and attention, as well as distressing and intrusive memories of past trauma. The examiner noted that PTSD symptoms "could have contributed to the accident that caused his death." Significantly, both the private and the VA examiner reviewed the medical record and both examiners are identified as licensed psychologists. Moreover, neither opinion is significantly more detailed than the other. Nevertheless, the conclusions reached by the examiners are different. After balancing these two medical opinions as well as the February 2017 clinical note and the appellant’s lay statements, the Board must conclude that there is essentially a state of equipoise as to the medical conclusions to be drawn. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, in light of the evidence discussed above, and resolving all reasonable doubt in the appellant’s favor, the Board concludes that the criteria for service connection for the cause of the Veteran’s death are met. As a final matter, as previously discussed in the prior Board decisions, the appellant at one point had also asserted that the Veteran’s death was caused by a heart condition that was a result of service, to include in-service herbicide exposure. Nevertheless, there was no medical evidence to support that the Veteran had a heart disability that was related to service, or that caused his death. Regardless, given the favorable disposition above finding that the Veteran’s service-connected PTSD substantially contributed to his death, the Board need not further address this contention. Entitlement to nonservice-connected death pension benefits The appellant also contends that she is entitled to nonservice-connected death pension benefits. Nonservice-connected death pension benefits are generally available to the surviving spouse of a veteran as a result of the veteran’s nonservice-connected death. 38 U.S.C. § 1541 (a). Basic entitlement exists if the veteran served on active duty for 90 consecutive days or more, part of which was during a period of war; or, was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; or if the surviving spouse meets specific income and net worth requirements. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (b)(4). In this case, DIC benefits are being granted through the award of service connection for the cause of the Veteran’s death. Given that an award of DIC benefits is a greater benefit than a nonservice-connected death pension, the claim for nonservice-connected death pension benefits is considered moot and, therefore, is dismissed. See 38 C.F.R. § 3.151 (a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise); see also 38 U.S.C. §§ 1311, 1541. Entitlement to accrued benefits Periodic monetary benefits to which a Veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as “accrued benefits.” 38 U.S.C. § 5121 ; 38 C.F.R. § 3.1000 ; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran’s death. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Essentially, accrued benefits are paid as follows: (i) to the Veteran’s spouse; (ii) his or her children (in equal shares); or (iii) his or her dependent parents (in equal shares) or the surviving parent. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5). Only evidence contained in the claims file at the time of the veteran’s death will be considered when reviewing a claim for accrued benefits. In this case, there was no pending claim at the time of the Veteran’s death in November 2016. The Veteran filed claims during his lifetime, but no claim remained pending at the time of his death. Moreover, neither the appellant nor her representative have pointed to any pending claim that remained unadjudicated. Therefore, as the record shows that the Veteran did not have any type of claim pending at the time of his death, there are no possible accrued benefits that could be paid to the appellant. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In sum, the appellant has no legal basis for entitlement to accrued benefits because there was no pending claim at the time of the Veteran’s death on which the   appellant’s accrued benefits claim could be based. 38 U.S.C. § 5121 (a) and 38 C.F.R. § 3.1000. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.