Citation Nr: 21023769 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-39 639 DATE: April 21, 2021 ORDER Service connection for the cause of death is denied. FINDINGS OF FACT 1. The Veteran separated from service in 1966; he died in 1998. 2. The immediate cause of his death was “probable hyperthermia” with no other conditions listed on the death certificate; it was noted that “examination of skeletonized remains indicates deceased probably died as a result of hyperthermia (heat stroke)”. 3. At the time of his death, the Veteran was not in receipt of service connection for any disability. 4. The most probative (i.e., competent and credible) evidence of record is against finding that a service-connected disability caused or contributed substantially or materially to his death. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty for training (ACDUTRA) from February 1963 to August 1963 and active duty from July 1964 to May 1966. More than three decades after his separation from service, he was found deceased in August 1998. The Appellant is his surviving spouse, so widow; she asserts that his mental health disability was caused or aggravated by his service, and that his mental health issues led to his death. This claim was previously before the Board in June 2018 and remanded back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) to obtain additional clinical records and a medical opinion as to impact of the Veteran’s service on his mental health disability. There has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999)   To establish service connection for the cause of a 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). 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. 38 C.F.R. § 3.312(c)(1). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran’s death should have been service connected. That is to say, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury that was incurred in or aggravated by his service or, in the alternative, is secondary to (meaning caused or aggravated by) a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. Initially, the Board wishes to explain a possible misconception by the Appellant, who has stated that the Veteran was in receipt of service connection for PTSD, rated as 100-percent disabling The Veteran was not in receipt of service connection for PTSD or for any disability. His claim for service connection for an acquired psychiatric disability (i.e., psychoneurosis depression formerly diagnosed as schizophrenic reaction) was denied in an April 1971 RO decision, and it has not been shown that he had a competent diagnosis of PTSD related to his service. Moreover, treatment at a VA facility does not confer service connection status to a Veteran for a disability. Here, although he was not in receipt of service connection for a disability, he was in receipt of nonservice-connected pension for psychoneurosis and post-prandial abdominal symptoms (see October 1980 RO rating decision), which is possibly the reason why the Appellant believes that he was in the receipt of service connection (i.e., he was getting monthly disability payments based on permanent and total disability due to nonservice-connected disability, his service during a period of war, and his finances (level of income)). In short, VA compensation benefits are different from VA pension benefits. Turning now to the relevant evidence in this case, the Veteran’s death certificate lists the cause of his death as probable heat stroke and lists it as an accident. The record reflects that his brother had last seen him on July 17, 1998, and that the Veteran had placed a telephone call to a mental health facility on July 19, 1998. He was reported missing on July 24, 1998; it was noted at that time that he was taking five different medications to treat psychotic behavior and did not have his medication with him when he went missing. On August 8, 1998, his skeletonized body was discovered in an open cotton or grain field. Although the Appellant-widow asserts that the Veteran’s death was due to his mental health – which, in turn, was due to or caused by his service, she has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of, or aggravation of, his mental health disability, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond her lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The Board finds that the most probative (meaning most competent and credible) evidence of record is against concluding that service connection is warranted for the cause of the Veteran’s death.   To reiterate, one of the biggest differences between VA compensation benefits and VA pension benefits is the attribution of the disability – or, here, death, to the Veteran’s service (a requirement for compensation benefits). In other words, it is permissible to establish entitlement to VA pension benefits without this attribution of the disability to the Veteran’s service. Dependency and Indemnity Compensation (DIC), specifically, cause of death, is the type of benefit sought in this appeal, so there must be this required attribution of a condition that caused or contributed substantially or materially to his death to his service. Every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as “noted” for the purpose of this analysis. 38 C.F.R. § 3.304(b). If a condition is not “noted” upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran’s service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Veteran entered ACDUTRA in 1963 and active duty in 1964. His respective December 1962 and July 1964 Reports of Medical Examination for enlistment purposes show he had a normal psychiatric evaluation. Thus, it is presumed (at least initially) that he was in sound mental health when beginning his service. However, there is clear and unmistakable evidence that he had an acquired psychiatric disability prior to his service. An August 1970 statement from a private physician (Dr. K.) notes that he had treated the Veteran for schizophrenia in July 1962, which was prior to service. This physician explained that, when he first saw the Veteran, he was “definitely suffering schizophrenic illness of almost one months’ duration”. This commenting physician stated that the Veteran had done things such as directing traffic to stop all ‘these accidents’, went swimming fully dressed, was quiet and seclusive, exhibited very poor financial judgement, and stated that he could hear voices if he wanted to. He was treated with 13 electroshock sessions, his condition improved, and he then enlisted in the Army. The Appellant-widow has not provided any refuting evidence that Dr. K. did not competently and credibly diagnose the Veteran with an acquired psychiatric disability prior to his service. The Board thus finds that there is clear and unmistakable evidence that the Veteran had a pre-existing disability of schizophrenic illness. The next question is whether there also is clear and unmistakable evidence that the disability was not aggravated during or by his service – again, meaning worsened beyond its natural progression. While in service, the Veteran was again evaluated for his mental health. Dr. K. stated that he examined the Veteran in January 1966 (while the Veteran was in service and on leave), and, at that time, this physician contacted, through the Red Cross, army medical authorities advising them to discharge the Veteran since he was “again definitely schizophrenic”. Service Treatment Records (STRs) show that, in September 1964, the Veteran reported that he could not sleep at night for the past three months, and he had a slight upper respiratory infection. In January 1965, he had been in Korea for 18 days when he complained about nervousness, restlessness, and a desire to be kept busy. He requested career counseling. It was noted that he had been hospitalized at Fort Sill, Oklahoma, in August 1963 for a nervous breakdown. It was further noted “schizoid flavor to life history.’   A January 1966 Red Cross report reflects that the Veteran “was home on leave and ‘went to pieces’. Dr. [W. B.K.] Psychiatrist, called Red Cross Chapter worker as he is very concerned about serviceman. He had been under his care several years ago for emotional illness. Doctor states serviceman on verge of Schizophrenic Breakdown and suggests he see doctor at Ft. Dix prior to oversees shipment.” Service personnel records (SPRs) reflect that the Veteran’s command found that the Veteran “cannot be given a job, even a minor detail, without very close supervision”, and his behavior has been the same since he joined the unit in February 1966. The Veteran reported that he cannot work while people are watching him, and he cannot stay in one place for any length of time. In March 1966, the Veteran was admitted to a psychiatric ward after having gone AWOL (Absent Without Leave) on two occasions in a month. It was noted that further retention in the service will result in further acts of maladjustment, and he should be eliminated by administrative action. He was hospitalized from March 7, 1966 to March 10, 1966 for emotional instability. The Veteran separated from service in May 1966. Post-service records reflect that the Veteran was hospitalized from November 12, 1970 to January 29, 1971 for psychoneurosis depression. It was noted that he was deeply depressed, could not hold a job, and had attacks of anxiety. It was also noted that he had had a breakdown at age 17 (before service) when he could not sleep and was found wandering in the street, and that he had been depressed in service, confused, and seemed to have no goals. Post service, he had a few jobs. August 1979 Corpus Christi, Texas records reflects that the Veteran was admitted to a psychiatric unit secondary to alcoholism and attempted suicide. He was diagnosed with personality disorder (inadequate), and alcohol addiction. 1984 records reflect that the Veteran reported that approximately three months earlier, he had a nervous breakdown and injured both hands when, while in a psychotic state, he put both hands under a fan. 1994 records reflect that the Veteran has chronic schizophrenia. He had reported ideas of references, grandiose delusions, positive paranoid delusions, positive echolalia, and positive verbigeration. It was noted that he had an aunt who was psychotic, and a brother who was bipolar. His schizophrenia was exacerbated by marital conflict. The records note that he had a pattern of becoming stable shortly after admission to a hospital, but then decompensating right after he goes to his usual family environment. A June 1997 letter from Dr. A.D. (Texas Department Mental Health and Mental Retardation) reflects that the Veteran had been admitted six times to that facility and had prior admission to two other facilities. It was noted that his cognitive abilities are limited, that he requires supervision and environmental cues to function. The Veteran unfortunately died in 1998. Essentially, the evidence supports that the Veteran was diagnosed with schizophrenia prior to service, had symptoms in service, and was again diagnosed with schizophrenia for many years after service until his death. A February 2021 Disability Benefits Questionnaire (DBQ) reflects that the examiner considered that the Veteran had a pre-existing disability, and that while he had improved enough to be enlisted into the military, schizophrenia is a chronic mental illness that does not resolve. Rather, it might cycle with times of remission. The examiner also noted that the Veteran’s symptoms at the time of discharge do not appear to have been worse then, than when he was first diagnosed in 1962, in fact, at the time of discharge, his diagnosis was emotional instability, which does not reflect an increase in symptoms. The examiner explained that the Veteran’s multiple hospitalizations for episodes of decompensation and increasing psychotic symptoms is the usual course of the illness of schizophrenia. The examiner found no evidence of PTSD in the record. The examiner also cited to literature to support that multiple relapses characterize the course of illness in most claimants with schizophrenia and noted that the Veteran’s symptoms in service were the nature of a schizophrenic relapse. The examiner again stated that symptoms of the Veteran’s mental disability will tend to increase with periods of remission through the natural course of the disease. The Board acknowledges the 2021 DBQ examiner did not use the terms “clear and unmistakable” and her finding that it is “less likely than not that the veteran’s pre-existing schizophrenia did not increase in severity beyond the natural progress of the disease in service” is not the legal correct standard, uses a double negative, and is not supported by her rationale. However, there is no requirement that a medical professional express an opinion using specific terminology. Rather, it is for adjudicators, to include the Board, to apply the correct legal standard and explain the amount of probative value an opinion is assigned. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). In addition, medical reports must be read as a whole and in the context of the evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). When reading the examiner’s rationale, and the authority to which she cites, it is clear that she was opining that the Veteran’s pre-existing schizophrenia followed the normal pattern for schizophrenia, which had periods of relapses and was not aggravated by his service. In sum, the evidence supports that the Veteran’s in-service symptoms were part of the natural progression of his disease. There is also no competent and credible opinion that the Veteran’s symptoms in service were not part of the natural progress of the disease. Thus, the Board can find that there is clear and unmistakable evidence that his disease was not aggravated by service. However, even assuming that there is not clear and unmistakable evidence that the Veteran’s disability was not permanently worsened beyond its natural progression by service, service connection is still not warranted. Assuming arguendo that the presumption of soundness is not rebutted (i.e., because there was not clear and unmistakable evidence that his pre-existing disability was not aggravated by service), the evidence still does not reflect that it is as likely as not that the Veteran had an acquired psychiatric disability causally related to, or aggravated by, service. There is no probative evidence (e.g., a clinical opinion) that it is as likely as not that the Veteran’s schizophrenia had its initial onset in service. Dr. K. (in his 1970 statement) noted that the Veteran had schizophrenia prior to service and again in service, and there is no competent evidence to rebut this finding. The evidence also supports that there is no cure for schizophrenia (i.e., it does not resolve), but that it has periods of remissions and relapses. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). There is also no probative evidence that the Veteran’s post-service symptoms (at the time of his death) had their onset in service. The claims file lacks competent (e.g. clinical) and credible evidence that it is as likely as not the Veteran’s acquired psychiatric disability was as likely as not causally related to service and that it was the cause of his death. The Board also notes that the death certificate does not list schizophrenia or mental illness as a cause of death, an underlying condition, or a condition that led to, or resulted in, the cause of his death. Rather, his cause of death was noted to be heat stroke. There is no probative evidence that his heat stroke in 1998 was in any way related to service more than three decades earlier. His STRs do not reflect that he ever had heat stroke in service, and the evidence does not indicate that his service somehow predisposed him to having heat stroke decades later. The Appellant contends that the Veteran had a history of wandering off “due to the severity of his PTSD and mental illness.” As noted above, the most probative evidence does not support that the Veteran had PTSD due to, or aggravated by, service. Moreover, although she has surmised that his death was related to service, his death has been deemed an accident and found to be related to heat stroke.   The Board is sympathetic to the Appellant’s situation, and the prior situation of the Veteran. However, for the reasons and bases discussed, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.