Citation Nr: 22017347 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-23 468 DATE: March 24, 2022 ORDER Entitlement to service connection for Veteran's cause of death is denied. FINDING OF FACT 1. The Veteran's death certificate shows that he died in December 2015 due to multiple blunt force injuries sustained from a motorcycle crash. 2. The service department found that the Veteran's motorcycle accident that resulted in his death was not in the line of duty and was due to his own willful misconduct. CONCLUSION OF LAW The criteria for service connection for Veteran's cause of death are not met. 38 U.S.C. §§ 105, 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from May 2001 to May 2004 and from September 2004 to December 2015. The Veteran passed away in December 2015 during military service; the appellant before the Board of Veterans' Appeals (Board) is his surviving spouse. This matter comes before the Board from an August 2016 administrative decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The appellant requested a videoconference Board hearing in her May 2017 formal appeal (VA Form 9). A hearing was scheduled for February 2, 2022, at the Waco, Texas VA regional office. However, the appellant failed to report to the hearing and did not request that another hearing be rescheduled. As such, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when such 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 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; or 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). However, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct or, for claimed filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 C.F.R. §§ 3.1(m), 3.301(a). "Willful misconduct" is further defined as "an act involving conscious wrongdoing or known prohibited action." 38 C.F.R. § 3.1(n). Finally, a service department finding that injury, disease, or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. See Id. For specific acts of willful misconduct, it is noted that the simple drinking of alcoholic beverages is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. See 38 C.F.R. § 3.301(c)(2). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time or such excessive use at any one time, sufficient to cause disability to or death of the user. Drug abuse means the use of illegal drugs (including prescription drugs that are illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy intoxicating effects. 38 C.F.R. § 3.301(d). In July 2016, the Veteran's Line of Duty determination was completed by the Department of the Army. After thorough investigation, the Army concluded that at the time of death the Veteran was "Not in Line of DutyDue to own misconduct." The Veteran spent the day prior to his death riding his motorcycle when he noticed his wife following him. The Veteran asked his wife to go home and be with their children. The Veteran decided then to meet up at with his brother later in the evening at a bar. When the Veteran's spouse arrived, they left and went to their mother's house where they spent the next several hours drinking. The Veteran departed early the next morning on his motorcycle. While traveling down an access road, he struck a concrete barrier, causing him to lose control, which led him to fall and slide 250 feet. After the accident occurred, an oncoming vehicle struck the Veteran. Emergency services arrived on the scene and pronounced the Veteran dead upon their arrival. Medical personnel stated that the Veteran had most likely passed before he was struck by the oncoming vehicle. The Veteran was not wearing a helmet and had a blood alcohol level (BAC) of 0.239 percent. The medical examiner who performed the autopsy found that the level of alcohol in the Veteran's system would have impaired his ability to operate a motorcycle. Based on these findings, the military determined that the Veteran's death was not in the line of duty and was the result of his own willful misconduct. In short, the service department found the Veteran's death was the direct result of his decision to operate his motorcycle while intoxicated. Therefore, the Veteran was not in line of duty due to own misconduct at the time of his death. The Board is bound by this determination made by the service department. See 38 C.F.R. § 3.1(n); Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993). The Board does acknowledge the appellant's statements of record in her January 2016 claim for DIC benefits, February 2017 notice of disagreement, and May 2017 substantive appeal, VA Form 9. In short, the appellant indicates that the Veteran had two combat deployments to Afghanistan in 2003 and 2008/2009, and that after returning from those deployments, he was "different." She noted that, particularly after he returned from his second deployment, he "behaved erratically, had trouble sleeping, horrible nightmares, waking up violently swinging at me and was unaware of his surroundings. The doctor prescribed Tramadol to help him sleep, but it was definitely not working. He seemed distant and did not want to share what he had been through during his second deployment. . . ." She then indicated that after returning from his second deployment, they were assigned to a duty station in Hawaii. During the family's time there, the Veteran's son was diagnosed with bone cancer; the Veteran's son succumbed to his cancer in March 2015, after an approximately a 3-year battle. The appellant stated that the Veteran's death occurred 9 months after the death of his son. On appeal, she contends that the Veteran had posttraumatic stress disorder (PTSD) as a result of his combat deployments. She admits that he was never treated for this during military service and that such was not diagnosed. She further indicated that he felt "guilt" for those that he lost in the war and then the death of his son. She specifically stated that she felt "that if he had been diagnosed and had received the help he needed he would have been able to cope better with the death of his son." The Board notes that the Line of Duty report does indicate that interviews with the Veteran's unit after his death did not disclose any signs of depression or indicators that the motorcycle accident may have been an attempt by the Veteran to commit suicide. The Veteran's chain of command emphasized during those interviews that the Veteran's contributions and work ethic were credible and outstanding. Finally, a review of the service treatment records does not disclose that the Veteran ever reported any mental health issues or sought any mental health treatment or counseling. Although the appellant adamantly believes that the Veteran had PTSDand is presumably linking the Veteran's drinking to the self-medication of that disorderduring military service, the Board reflects that she has not demonstrated that she is a medical professional with the requisite medical expertise to provide such a diagnosis and medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Moreover, although her competent lay statements indicate that the Veteran suffered from erratic behavior, trouble sleeping, nightmares and waking up being unaware of his surroundings shortly after his return from Afghanistan in 2009, her statements do not disclose that those symptoms persisted and were continually present up through the time of his death in December 2015. Notably, the evidence demonstrates that the Veteran did not seek any mental health treatment during the period of time preceding his death, and the other evidence of recordparticularly the other members of his unit and his chain of commanddid not disclose that they observed any signs or symptoms of depression or any other erratic or suicidal behavior; he work was described as credible and outstanding. As a final matter, the appellant's statements do not disclose a pattern or practice of the Veteran prior to his death, either after return from deployment in 2009 or after the death of his son in March 2015, that would demonstrate a chronic alcohol use disorder or otherwise raise credible circumstantial evidence of a mental health condition being self-medicated with alcohol. In light of this evidence, the Board acknowledges that, although a VA medical opinion regarding whether the Veteran had a psychiatric disorder with a secondary alcohol use disorder that caused or contributed to his death was not obtained, the Board finds that the evidence of record at this time does not meet the low threshold for obtaining such a medical opinion. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board expresses its condolences to the appellant for her loss and acknowledges her contentions and sincerely held beliefs regarding the etiology of her husband's death. However, the legal authority pertaining to DIC benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. In short, the Board finds that it is bound by the service department's finding in this case that the Veteran's death was not in the line of duty and was due to his own willful misconduct. The evidence of record does not indicate that such a finding by the service department is patently inconsistent with the facts of this case. As such, the Board is compelled in this case to deny the appellant's claim for service connection for cause of the Veteran's death. See 38 C.F.R. §§ 3.1, 3.301, 3.312. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.