Citation Nr: 22046067 Decision Date: 08/15/22 Archive Date: 08/15/22 DOCKET NO. 17-41 839 DATE: August 15, 2022 ORDER Entitlement to service connection for the Veteran's cause of death is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran's schizophrenia was incurred in or aggravated by his active-duty service. 2. The evidence is at least in equipoise that the Veteran's schizophrenia contributed substantially or materially in causing his death. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1972 until May 1975. The Veteran died in March 1982, and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). At the outset, the Board finds a brief procedural history of the Appellant's claim is warranted. In January 1984 and November 1985, the Board denied the Appellant's claim for service connection for the cause of the Veteran's death. The Appellant did not appeal these Board decisions. In an October 2019 decision, the Board determined new and material evidence had been received and granted the Appellant's appeal to reopen the above-referenced claim. The Board also remanded the Appellant's claim to obtain a medical opinion to determine the nature and etiology of the Veteran's schizophrenia (i.e., if the condition was service connected) and whether the Veteran's schizophrenia contributed materially or substantially to his cause of death. Subsequently, in May 2020, the Board denied the Appellant's claim for service connection for the Veteran's cause of death. She appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In March 2022, the Court issued a Joint Motion for Remand, vacated the May 2020 Board decision, and remanded the case to the Board for action consistent with the Court's decision. Specifically, the Court noted the Appellant was not properly notified of the May 2020 decision and the Appellant's Privacy Act requests were not fulfilled prior to the issuance of the May 2020 decision. As the Board is granting the Appellant's claim in full, these errors are now considered harmless and will not be addressed in this decision. Analysis The Appellant seeks dependency and indemnity compensation (DIC) benefits as the surviving spouse of the Veteran, who died of a gunshot wound as the result of a police encounter. The Appellant asserts the Veteran's schizophrenia caused him to have a psychotic break in March 1982. During this psychotic break, the Veteran was confronted by the police and fatally shot. DIC benefits are payable to a surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). If a veteran was not service connected and did not have any pending claims for entitlement to service connection at the time of death, the Board may grant entitlement to service connection posthumously should the Veteran's cause of death warrant such a decision. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. At the time of his death, the Veteran was not service connected for schizophrenia, nor did he have a pending claim for service connection for schizophrenia. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran's schizophrenia had its onset in service, or at least one year following his discharge from service, and the Veteran's schizophrenia contributed substantially or materially in causing his death. Following the October 2019 Board remand, the RO obtained a VA medical opinion to address nature and etiology of the Veteran's schizophrenia and whether the condition contributed to the Veteran's cause of death. The October 2019 medical examiner reviewed the Veteran's available records and indicated that immediately prior to his death, the Veteran had diagnoses of posttraumatic stress disorder (PTSD) and schizophrenia. The examiner opined the Veteran's PTSD was more likely than not due to military service, however the Veteran's schizophrenia was less likely than not due to military service based on the medical evidence available. To support his conclusions, the examiner explained the Veteran's "symptom cluster in the years immediately following military service are congruent with a diagnosis of posttraumatic stress disorder (PTSD)." The examiner noted that in the records available for review the Veteran described normal childhood development and intact functional abilities prior to a traumatic in-service event in which he was badly beaten during an arrest in May 1973. The examiner stated following this in-service event, the Veteran experienced nightmares, sweating, asthma attacks, instances of violent dreaming, and diminished memory and attention. The VA examiner explained the medical records showed an "abrupt shift in symptomology in approximately 1980/1981, with the onset of psychotic symptoms, for which there is no historical correlate either in service or in the period immediately following and which cannot be determined as a natural progression of the Veteran's above noted PTSD." Ultimately, the October 2019 examiner concluded that "given multiple indications that the Veteran was actively psychotic at the time of his death, prompting the altercation with police that led to his demise, it appears less likely than not that the Veteran's PTSD can be determined to have caused or materially contributed to the Veteran's death." In February 2021, the Appellant submitted an addendum opinion from Dr. J.M., a licensed psychologist with over 40 years of experience. The Board also notes Dr. J.M. is a qualified VA contractor, certified to perform mental health and PTSD examinations for the VA. In order to render his February 2021 opinion, Dr. J.M. interviewed the Appellant and reviewed the available records, to include the entire claims file, service treatment records, VA treatment records, lay statements, and the October 2019 VA medical opinion. The Board notes Dr. J.M. also provided a medical opinion in June 2019. In both the June 2019 and February 2021 opinions, Dr. J.M. opined the Veteran's schizophrenia at least likely had had its onset while the Veteran was on active duty, or at the latest within one year of his May 1975 discharge. Additionally, Dr. J.M. opined it was more likely than not that the Veteran's schizophrenia caused or contributed to his death because the Veteran's schizophrenic behaviors had become so severe that the Veteran was unable to discern reality from his own paranoid delusions. These symptoms resulted in a psychotic break in March 1982 which caused the behavior that resulted in his death following a confrontation with police. To support the above conclusions, Dr. J.M. noted that it is extremely difficult to diagnose schizophrenia in the early stages of the disorder because patients often try to conceal the early symptoms. Dr. J.M. expressed the Veteran attempted to conceal his symptoms of schizophrenia, but a retrospective evaluation of the Veteran's records clearly show the Veteran had schizophrenia in the year following his discharge from the Army. Dr. J.M. stated he would not disagree with the October 2019 examiner's opinion that some of the evidence supports the diagnostic criteria for PTSD. However, Dr. J.M. explained that "PTSD alone cannot account for all of his [the Veteran's] psychiatric symptomatology, nor does that condition [PTSD] track with the evaluations of his treating physicians." In his review of the medical notes and letters provided by the Veteran's treating providers, Dr. J.M. noted that these providers documented symptoms of paranoid ideations, loss of control of violent impulses, and psychotic episodes. Dr. J.M. also noted that during his interview with the Appellant she believed the Veteran was hearing voices and experiencing hallucinations as early as June 1975. The Board finds the opinion of the private psychologist to be highly probative and persuasive, as it is based on a thorough review of the evidence of record and supported with a detailed, reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Board finds the opinion of the VA examiner to be less probative than that of the private psychologist, as it is not supported by the evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "[a]n opinion based on an inaccurate factual premise has no probative value"). Specifically, the VA examiner highlighted portions of the treatment records to support a post-discharge diagnosis of PTSD, but failed to address the symptoms of paranoid ideations, loss of control of violent impulses, and psychotic episodes also documented in those same records. Based on the foregoing, and after resolving all doubt in the Appellant's favor, the Board finds that probative evidence demonstrates that it is at least as likely as not that the Veteran's schizophrenia had its onset in service, or one year following discharge from service, and contributed substantially or materially in causing his death. Accordingly, service connection for the cause of the Veteran's death is granted. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.