Citation Nr: 22016120 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-53 408 DATE: March 21, 2022 REMANDED Entitlement to death and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967, including in the Republic of Vietnam, and was the recipient of the Combat Infantryman Badge. He died in June 1994. The appellant is the Veteran's surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal of a March 2017 Department of Veterans Affairs (VA) rating decision. The appellant testified before the undersigned at an October 2021 hearing. The appellant contends that her husband's suicide was caused by an undiagnosed psychiatric disorder which was incurred in or related to his active-duty combat service. Service connection may be established for the cause of a veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a); see 38 U.S.C. §§ 1110, 1310. A service-connected disability is the principal cause of death when that disability, singly 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 must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Generally, compensation shall not be paid if the disability was the result of a veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301 (c). In order for suicide to constitute willful misconduct, the act of self-destruction must be intentional. 38 C.F.R. § 3.302 (a)(1). A person of unsound mind is incapable of forming an intent (mens rea, or guilty mind, which is an essential element of crime or willful misconduct). 38 C.F.R. § 3.302 (a)(2). It is a constant requirement for favorable action that the precipitating mental unsoundness be service connected. 38 C.F.R. § 3.302 (a)(3). The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. 38 C.F.R. § 3.302 (b)(2). Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness. Id. Although VA's duty to provide an examination or opinion under 38 U.S.C. § 5103A (d) does not apply to DIC or cause-of-death claims, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1321-22 (Fed. Cir. 2008). Such an effort may include obtaining a VA medical opinion in a cause-of-death case to help substantiate the claim. 38 U.S.C. § 5103A (a)(1); Wood, 520 F.3d at 1348; DeLaRosa, 515 F.3d at 1322. This case turns on the question of whether, at the time of his death, the Veteran had a psychiatric disorder which was incurred in or related to his active-duty service. Currently, the record contains no medical diagnosis of a specific acquired psychiatric disorder. However, the appellant and the Veteran's children have provided competent accounts of his behavior prior to his death and have related statements made by the Veteran describing traumatic events during his time in service. The Veteran's personnel records document that he was awarded the Combat Infantryman Badge. On a separation report of medical history in September 1967 the Veteran reported a history of depression or excessive worry. Remand is required to obtain a medical opinion to address whether, based on the competent lay evidence of record, the Veteran had an acquired psychiatric disorder prior to his death which was incurred in or related to his active-duty service, to include his documented combat service. Additionally, at the October 2021 Board hearing, the appellant indicated that she intended to submit copies of correspondence sent to her from the Veteran while he was stationed in Vietnam, but those letters have not been submitted. On remand, the appellant should be provided another opportunity to submit those potentially relevant documents if she so desires. The matters are REMANDED for the following action: 1. Invite the appellant to submit any correspondence from the Veteran, as identified at the October 2021 Board hearing. 2. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder which was present at the time of the Veteran's death. The examiner must answer the following questions. For the purpose of this opinion, please accept any reported combat-related stressor as verified. a. Based on the available evidence, were any diagnosable acquired psychiatric disorders present at the time of the Veteran's death? b. For each such disorder, was it related to an in-service injury, event, or disease to include the Veteran's conceded in-service combat stressors? Why or why not? In answering the foregoing questions, the examiner is asked to consider and discuss the lay testimony provided by the Veteran's wife and children, to specifically include their descriptions of statements made to them by the Veteran regarding traumatic in-service events, and the behaviors of the Veteran prior to his death. If the examiner finds the lay reports are insufficient to support an in-service etiology of any diagnosed acquired psychiatric disorder, the examiner must clearly explain why that is the case. Please be aware that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.