Citation Nr: 21022885 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-19 052 DATE: April 19, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on the in-service death of the Veteran is granted. FINDINGS OF FACT 1. The Veteran died while serving on active duty in June 2009. The proximate and immediate cause of death was accidental opiate toxicity. 2. The Veteran’s death is presumed to have been incurred in the line of duty as the Veteran’s death was not the result of willful misconduct or drug abuse. 3. The Veteran did not abuse drugs, and his drug use resulted from his service-related generalized anxiety disorder. CONCLUSION OF LAW The criteria for DIC benefits based on the in-service death of the Veteran are met.  38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 2005 until his death in June 2009. The appellant was the Veteran’s surviving spouse until her remarriage in August 2016, as the marriage occurred during service. 38 C.F.R. §§ 3.54, 3.55. Although the appellant no longer meets the definition of surviving spouse due to remarriage, the laws and regulations pertaining to surviving spouse status reflect an intent to bar the receipt of VA benefits only for the duration of any remarriage, since benefits are reinstated once such remarriage ends (whether by death, divorce, or annulment). 38 U.S.C. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2) (effective date of a reduction in compensation benefits based on divorce is the first day of the month following the month of divorce); 38 U.S.C. § 5110; 38 C.F.R. § 3.401(effective dates of dependency benefits for spouses and children are generally the date of the marriage or birth, if notice of the change in status is received within one year); 38 C.F.R. § 3.55 (listing exceptions to the general bar on furnishing benefits to remarried surviving spouses, implying that remarriage is not intended to be a complete bar to receiving benefits). Thus, there is no intent indicated in the applicable laws and regulations to apply a retroactive effect such that a remarriage bars receipt of benefits for the period prior to such remarriage. Consequently, the Board finds that, while the appellant no longer meets the definition of surviving spouse, she is eligible for DIC for the period during which she was the surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to Dependency and Indemnity Compensation (DIC). In that decision, the RO denied the appellant’s claim for DIC, finding that the Veteran’s death did not occur in the line of duty and was due to willful misconduct. In October 2018 and November 2019, the Board remanded the matter for further development. As the Board is granting the claim in full, discussion of compliance with the Board’s November 2019 remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the appellant submitted a Privacy Act request in July 2020 that has yet to be fulfilled by the VA. However, given that the Board is granting the benefit sought in full, there is no prejudice to the Veteran in proceeding with adjudication of this claim. Entitlement to DIC benefits based on in-service death of the Veteran Generally, a veteran’s death is service-connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303. When it is determined that a veteran’s death is service-connected, with service connection determined according to the standards applicable to disability compensation, his surviving spouse is generally entitled to DIC. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). For DIC purposes, the term “veteran” includes a person who died during active service and whose death was not due to willful misconduct. 38 C.F.R. § 3.1(d)(1). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran’s own willful misconduct or the result of his or her abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(m), 3.301(c). The Federal Circuit has held that a finding of willful misconduct precludes a finding of service connection for the purposes of DIC entitlement under 38 U.S.C. § 1310. Myore v. Nicholson, 489 F.3d 1207, 1212 (2007). “Willful misconduct” means 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. A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. A service department finding that death occurred in line of duty will be binding VA unless it is patently inconsistent with the facts and the requirements of laws administered by the VA. 38 C.F.R. § 3.1(n). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). The appellant contends that the Veteran’s death in June 2009 while home on leave from deployment was not due to willful misconduct as the drug use that caused his death was a result of coping with his service-related mental health disability and the stress of his past and current deployments. The appellant’s attorney additionally contends that the Veteran was insane as defined by 38 C.F.R. § 3.354(a) at the time of his death. 38 C.F.R. § 3.354(a) defines an insane person as one who, “while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.” In light of the favorable decision to grant the appellant’s claim based on the contention that the Veteran’s death was not due to willful misconduct, but was a result of drug use resulting from service-related generalized anxiety disorder, a discussion of the attorney’s contention that the Veteran was insane at the time of his death is not necessary. The Veteran’s death certificate from June 2009 listed the Veteran’s manner of death as pending investigation. However, the June 2009 official autopsy report by the coroner found that the Veteran’s death was due to opiate toxicity. Both the postmortem blood and urine sample showed evidence of morphine, and the only positive finding at autopsy was a marked pulmonary edema, which the pathologist noted is often the hallmark of an opiate overdose. There was also a recent needle puncture wound ot the left forearm, and no other cause of death could be identified on gross and microscopic examination of body tissues. Service treatment records from March and April 2008 indicated that the Veteran sought mental health services after he found his girlfriend dead. At that time, he endorsed a long history of anxiety symptoms, mostly worrying about things, beginning in high school. In an April 2008 intake report, the Veteran noted he deployed once to Iraq and reported no problems during or after deployment. In April 2008, the Veteran was diagnosed with adjustment disorder with anxiety, generalized anxiety disorder, and bereavement without complications and was prescribed medications. The Veteran continued to participate in psychotropic medication management and individual psychotherapy prior to his deployment. The Veteran reported in April 2008 that he was not anxious about his deployment and switched to a different medication for the treatment of his anxiety. In September 2008, the Veteran attended his final appointment for psychotropic medication management prior to deployment and endorsed symptoms of anxiety, worry, muscle tension, poor sleep, trouble concentrating, and restlessness. He denied panic attacks and/or symptoms of depression, as well as denying anxiety about the upcoming deployment. A February 2010 Line of Duty (LOD) determination by the U.S. Army found the Veteran’s death “Not in Line of Duty-Due to Own Misconduct” as the result of drug abuse at the time of the Veteran’s death. The report noted that its office received the final autopsy report that related the manner of death of the Veteran as accidental and the cause of death as drug abuse. A service department finding that death occurred in line of duty is generally binding on VA, 38 C.F.R. § 3.1(m), but there is no corollary regulation indicating that a not in line of duty finding is binding on VA. Consequently, the Board will address this issue de novo. During a November 2015 interview with a private psychologist, the Veteran’s wife reported that she married the Veteran after dating him for one year. She denied that he was addicted to drugs and was not aware of him using any illicit drugs. The Veteran’s wife indicated that the Veteran was highly distressed before his death over his anticipated deployment and dwelled on what might go wrong with his pending deployment. He was depressed, did not want to do the social things they usually did, and did not have much energy. He was also absent-minded and had difficulty concentrating. The night before his death they had friends over for dinner, and she went to sleep before the friends left. In a private psychologist’s report from November 2015, the private psychologist indicated that there was no indication of any suicidal ideation, plan, or attempt, and no finding of any substance abuse or dependence. The private psychologist found that the Veteran was diagnosed with having generalized anxiety disorder, adjustment disorder with anxiety, and sleep difficulties, all as a direct and proximate result of his enlistment. He emotionally suffered as a consequence of his post deployment syndrome, and although it was unclear if he intended to take his own life, he fit the profile of someone who was likely to do so (male, Caucasian, age, etc.). The private psychologist reasoned that after reviewing the documents of the case, interviewing the Veteran’s widow, and reviewing research, the Veteran died as a consequence of the use of drugs, which demonstrated his attempt to use the illicit drugs to help him emotionally cope with his pending deployment. The Veteran used drugs due to the stress of his deployment and as a result of the psychological damage he suffered during his recently ended prior combat deployment. In a June 2020 VA opinion, a VA psychologist noted that the Veteran did not report problems during or after his first deployment and that he was not anxious about his upcoming deployment. She also noted the Veteran’s endorsement of anxiety symptoms and treatment for anxiety in high school. She indicated that there was no evidence that the Veteran experienced polytrauma, experienced significant physical pain, abused multiple substance or was ever diagnosed with posttraumatic stress disorder (PTSD). She also noted that post deployment syndrome is not an actual diagnosis/condition that is recognized by either the psychiatric and/or medical communities (i.e. not included in current diagnostic manuals such as the DSM-5 and/or ICD 9 or 10 codes). The VA psychologist in June 2020 found that it was more likely than not that the Veteran met the DSM-5 diagnostic criteria for a diagnosis of generalized anxiety disorder. Additionally, it was less likely than not that the Veteran’s generalized anxiety disorder was caused by or incurred during his military service as there was clear and unmistakable evidence to suggest this condition existed prior to service. Furthermore, it was less likely than not that the Veteran’s generalized anxiety disorder was permanently aggravated beyond its natural progression by his military service as it is common for the severity of mental health symptoms to fluctuate throughout the course of an individual’s life and in response to situational stressors. Therefore, it was not abnormal for the Veteran to have experience increased symptom severity following the death of his girlfriend and the resulting investigation. However, he described a pre-military history in which the symptoms of his generalized anxiety disorder necessitated treatment with psychotropic medications and psychotherapy, which is consistent with his symptom presentation during active duty. Thus, there is no evidence that his generalized anxiety disorder symptoms were ever more severe while on active duty than they were prior to his military accession. Regarding substance use/abuse/dependence, while the Veteran endorsed use of alcohol and pre-military use of marijuana on three occasions, there was no evidence to suggest that the Veteran’s substance use ever met diagnostic criteria for a substance use disorder diagnosis. There was also no endorsement of opiate use/abuse in the current body of evidence. Therefore, it was less likely than not that the Veteran’s use of opiates was proximately caused by or permanently aggravated by his mental health condition and/or his military service. Finally, the attorney representing the Veteran’s widow asserted that, at the time of his death, the Veteran was insane, as that term is used by the VA, when he used drugs to escape the stress of his upcoming deployment. A review of all available evidence is silent for the presence of any symptoms suggesting the presence of psychosis (i.e. delusions and/or hallucinations), as well as any indication the Veteran had been behaving in any way that interfered with the peace of society and/or deviated significantly from societal/cultural norms (i.e. violations of law, arrests, complaints by peers and/or chain of command, etc.). Therefore, there was no evidence to suggest that, at or near the time of his death, the Veteran was “insane” as defined by the VA. For the following reasons, entitlement to DIC benefits based on the Veteran’s in-service death is warranted. As noted previously, the Veteran died in June 2009 while he was home on leave from a deployment to Iraq. He was subsequently found to have died from an accidental drug overdose that was not considered in the line of duty but due to his own misconduct, namely, drug abuse. Veterans are entitled to a presumption that injuries incurred during active service were “incurred in the line of duty” and not the result of the veteran’s willful misconduct. 38 U.S.C. § 105(a) (“An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in [the] line of duty and not the result of the veteran’s own misconduct....”); Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (“By its plain terms, section 105(a) creates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by the veteran’s misconduct.”). The Secretary, however, can rebut the presumption if he shows, by a preponderance of the evidence, that the injury was caused by the veteran’s own willful misconduct or the abuse of alcohol or drugs. Id.; Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005). Here, the Veteran is entitled to the presumption that his death was incurred in the line of duty. Moreover, the preponderance of the evidence does not show that the Veteran’s death was caused by his willful misconduct or was the caused by his abuse of drugs. In regard to whether the Veteran abused drugs, the preponderance of the evidence does not reflect that the Veteran’s use of drugs was part of a pattern of drug abuse. Rather, the evidence of record, namely the appellant’s statements, show that the Veteran was not addicted to drugs and did not use abuse illicit drugs. The appellant dated the Veteran for a year prior to their nine-month marriage, thus, the Board finds her statements in regard to whether the Veteran abused drugs competent and credible. Moreover, in regard to whether the Veteran’s death was the result of willful misconduct, where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person’s willful misconduct. However, where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). Here, the appellant contends that the Veteran’s generalized anxiety disorder was service-related, and that he used drugs the night of his death to cope with the anxiety he felt about going back on deployment. As noted previously, the June 2020 VA examiner mentioned the Veteran’s previous reported history of anxiety prior to entering service. A Veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. The enlistment examination in August 2005 did not show any diagnoses of a psychiatric disorder. On his August 2005 Report of Medical History, the Veteran indicated he used marijuana three times without any other instances of drug or alcohol use. The August 2005 Medical Pre-Screen Report noted evaluation, treatment, or hospitalization for alcohol abuse, dependence, or addiction without providing any further information. Because the record in this case establishes that the Veteran was “examined, accepted, and enrolled for service,” and that such examinations revealed no “defects, infirmities, or disorders,” the presumption of sound condition attaches with respect to the Veteran’s generalized anxiety disorder disability. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In light of this finding, the burden of proof is on VA to rebut the presumption of soundness. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) the disability existed prior to service; and (2) that the pre-existing disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). This burden is a formidable one, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). For the following reasons, the presumption of soundness has not been rebutted with respect to the Veteran’s generalized anxiety disorder disability. Service treatment records and the appellant’s statements noted that the Veteran experienced anxiety symptoms throughout his time in service. Furthermore, a November 2015 private psychologist’s opinion found the Veteran’s generalized anxiety disorder was a direct and proximate result of his enlistment. As the lay statements of the appellant, service treatment records, and the November 2015 private opinion are competent and credible, even if preexistence is shown, there is no clear and unmistakable evidence showing a lack of aggravation of the Veteran’s generalized anxiety disorder disability during active duty service. Thus, the Veteran’s diagnosed generalized anxiety disorder, which the June 2020 VA examiner agreed met the DSM-5 criteria, was service-related. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). Moreover, the evidence of record here shows that it is more likely than not that the Veteran’s drug use resulted from his service-related generalized anxiety disorder. Specifically, the November 2015 private psychologist reasoned that the Veteran died as a consequence of the use of drugs, which demonstrated his attempt to use the illicit drugs to help him emotionally cope with his prior and pending deployments. As the private psychologist explained the reasons for his conclusion based on an accurate characterization of the evidence, and reading the opinion as a whole and in the context of the evidence of record, the opinion is entitled to some probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Furthermore, as the November 2015 opinion indicated that the Veteran used drugs to help him cope with his issues stemming from his deployments, the Board will interpret the opinion in the manner most favorable to the Veteran and find that it supports a relationship between the service-related generalized anxiety disorder and the Veteran’s drug use. Cf. Brown v. Gardner, 513 U.S. 115, 118 (1994) (in construing veterans’ law, “interpretive doubt is to be resolved in the Veteran’s favor”). The June 2020 VA opinion is of little probative value as the VA examiner used the incorrect ”less likely” standard in discussing the relationship between the claimed disorder and the Veteran’s service, instead of the more stringent “clear and unmistakable evidence” standard necessary to satisfy the legal criteria in this case. For the foregoing reasons, the Veteran’s drug use was related to his service-related generalized anxiety disorder. Thus, the Veteran’s death on active duty is presumed in the line of duty and not as a result of his own willful misconduct or abuse of drugs. DIC benefits based on the Veteran’s in-service death are therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.