Citation Nr: 21041190 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-41 450 DATE: July 8, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The official death certificate shows that the Veteran died in May 2016 with an immediate cause of death of multiple internal injuries due to blunt force trauma and a motorcycle accident. 2. At the time of death, the Veteran was service connected for posttraumatic stress disorder (PTSD). 3. The evidence is at least in equipoise that the Veteran's death was caused by his service-connected PTSD symptoms to include partaking in high risk behaviors. 4. Based on the grant of the cause of death claim, the issue of DIC under 38 U.S.C. § 1318 is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for cause of death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.312. 2. The claim for DIC under 38 U.S.C. § 1318 is denied as a matter of law. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to May 1992, including in Southwest Asia for which he earned the Southwest Asia Service Medal with 3 Bronze Stars. Sadly, he died in May 2016. The Appellant is his surviving spouse. This matter is before the Board of Veteran's Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). In June 2021, a virtual hearing was held before the undersigned Veterans Law Judge. This decision is being made under the "one-touch" program. A transcript of the hearing will be associated with the claims file at a later time. 1. Entitlement to service connection for cause of death. The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 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). The Veteran's death certificate lists the immediate cause of death as multiple internal injuries due to blunt force trauma sustained during a motorcycle accident. The Appellant asserts that the Veteran's high-risk behavior is a symptom of his PTSD and ultimately lead to the motorcycle accident that resulted in his death. At the time of the Veteran's passing, he was service connected for PTSD rated at 100 percent, completely disabling. The question before the Board is whether the Veteran's PTSD caused him to engage in risk taking behaviors such as operating a motorcycle at an unsafe speed. The Veteran's mental health records from March 1999 to present show a long history of treatment for PTSD to include inpatient hospitalizations, self-harm tendencies, suicidal ideations, and risk-taking behavior. This behavior includes getting into physical altercations, destroying his own home, and anger related issues. Self-harm by its very nature is a high risk activity due to the possible life threatening implications. In April 2010 the Veteran underwent a VA examination to reevaluate the severity of his PTSD symptoms. Here the Veteran reported a lack of personal hygiene, issues with memory, experiencing auditory hallucinations, paranoid thoughts, and suicidal ideations. After the Veteran's passing in July 2016, his long-term psychiatrist of about 7 years, Dr. B, stated that the Veteran had been suffering from combat related PTSD "for years. It is widely recognized that one of the problems of [PTSD] is risk taking behavior. In my opinion, his excessive speed on his motorcycle rides fall in the category [of high-risk behavior] and directly led to his demise." The Veteran had been under Dr. B's care for his PTSD symptoms and psychotherapy sessions since 2009. The Veteran's VA outpatient mental health records support that Dr. B has been treating the Veteran for many years for a confirmed diagnosis of PTSD and the accompanying symptoms. The Board finds that the statement submitted by Dr. B, who has a long and consistent clinical relationship with the Veteran, regarding the observed symptoms of the Veteran's PTSD over the course of 7 years with at least monthly therapy sessions must be given a great deal of probative value. As such, the Board affords Dr. B's statement a significant amount of probative weight. Additionally, the Veteran's VA mental health records corroborate Dr. B's assertion as the Veteran's records indicate he began mental health treatment in about May 2009 and continue through to the time of the Veteran's death. Relevant to this claim, the Veteran's mental health records show a prior injury to the Veteran's tibia during a motorcycle class. In November 2015, the Veteran reported he was in motorcycle class and broke his right tibia. He was placed on non-weight bearing status and was "pissed off" about the situation. Additionally, Dr. B noted in May 2015 that the Veteran has "a problem every year in April. It was the month he came home from combat and losing his friend." In this note, the Veteran had called "in crisis" and asked to come in for counseling. The Veteran's risk-taking behavior appeared to begin escalating even more after this note. In a January 2016 mental health note, the Veteran recounted that the Appellant was pulled over by a police officer. She then called the Veteran to bring her a copy of the car insurance. Upon arriving to the scene, the Veteran got into a "disagreement" with the officer resulting in the Veteran's arrest. Additionally, in a February 2016 VA mental health note, the Veteran reported having homicidal ideations earlier that day. The Appellant reported to Dr. B that the Veteran threatened her and that he had "an altercation at the bar." The Veteran had been drinking and reported that others at the bar were being disrespectful toward women which upset him greatly. At this time, he reported not taking his prescribed medication for his PTSD symptoms. The Veteran further reported a need for impatient mental health care as he believes himself to be a danger to his family because he does not have "control over his rage and thoughts." The "plan" moving forward was to have the Veteran sleep in the living room for the night, talk with fellow bikers and friends, ride his motorcycle, and spend time with his dog. The May 2016 accident report stated that the Veteran was coming around a curve when he lost control of his motorcycle. The Veteran was thrown from his motorcycle, resulting in his passing. In a September 2016 disability benefits questionnaire (DBQ), the examiner stated that the Veteran's cause of death was unrelated to his service-connected PTSD. The examiner reasoned that the criteria for which Dr. B formulated his July 2016 opinion was not certain as the Veteran's record does not note instances of high-risk behavior. The examiner references the Veteran's April 2010 VA examination in which he asserts no high-risk behaviors are identified. Further, the examiner states that Dr. B's notation in February 2016 regarding the Veteran riding his motorcycle were considered elements of the "plan" to maintaining safety. However, there is no indication from that February 2016 note that indicates Dr. B asserted the Veteran's motorcycle riding as a "positive" or part of a "safety plan" but rather recognized it as a de-escalation activity for that moment in time. The examiner concluded by stating that reckless or self-destructive behavior was not among the Veteran's identified profile of PTSD related symptoms. However, this examination did not consider the lay statements as asserted by the Appellant regarding the Veteran's risk-taking behavior and simply did not know the Veteran's history or symptomatology the way that Dr B did. As a result, the VA opinion is afforded less probative weight than Dr B's opinion. In the Appellant's October 2016 notice of disagreement, she asserts that the Veteran was engaging in more and more risky behavior to combat his PTSD. She further asserts that his death was a "result of this behavior." In May 2017, the Appellant submitted a statement in support of her claim. Here she stated that the Veteran was arrested in May 2015. She states that an infant made a loud noise and the Veteran grabbed the child's mother while she was holding the baby. Before she could leave, the Veteran kicked her door several times "just ranting," and police were called to the scene. The Veteran was then admitted to inpatient mental health treatment. She states that the Veteran had significant road rage and was later arrested again for driving under the influence but was actually just confused in a neighborhood after meeting with some friends. She testified that despite the Veteran being in anger management, he would "have fits" and she would need to call for help deescalating him. She reported that the Veteran would spend large sums of money "too often" and never apologized. She concluded by stating, "[the Veteran] drove his Harley Davidson motorcycle too fast. He would be reckless." The Appellant is competent to report on the observable symptoms of the Veteran's PTSD. See 38 C.F.R. § 3.159(a)(2). Furthermore, the Appellant is a credible source of information as she has recounted similar descriptions of the Veteran's PTSD related high-risk behaviors since the claim was filed in July 2016. The Veteran's mental health records also support her assertions regarding his prior arrests and issues with anger management. As a result, the Board deems the Appellant's lay statements credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). As the Appellant was married to the Veteran and lived with his she is significantly more enlightened to the Veteran's risk-taking behaviors as she experienced them first-hand. As she has intimate knowledge of the Veteran's mental health to include his PTSD symptoms, the Appellant's lay statements regarding her husband's risk-taking behavior is afforded significant probative weight. A July 2017 VA DBQ was obtained to consider the Appellant's lay statements. This examiner stated that the Veteran's PTSD related high-risk behavior was not the cause of death nor did it contribute substantially to the Veteran's passing. The examiner reasoned that the Veteran's mental health records do not show risk taking behavior nor was there an indication from the accident report that speed played a role in the Veteran's motorcycle accident. The examiner stated that while the Appellant asserted the Veteran drove his motorcycle too fast that this was "non-specific to PTSD and is not corroborated by the available medical records." The Board finds this opinion adequate and probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Under the facts of this case the Board finds that the evidence is at least in equipoise as to whether the Veteran's high-risk behavior as a result of his service-connected PTSD significantly contributed to the motorcycle accident that lead to his death. See 38 C.F.R. § 3.102. Resolving reasonable doubt in the Appellant's favor, the Veteran's service-connected PTSD contributed substantially and materially to his death. Entitlement to service connection for the cause of death is established. The claim is granted. 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. DIC under 38 U.S.C. § 1318 is only available for death due to a non-service-connected disability. Based on the grant of service connection for the cause of death, the issue of entitlement to DIC under 38 U.S.C. § 1318 is moot, and the higher benefit sought has been granted. The claim under 38 U.S.C. § 1318 is denied as a matter of law. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.