Citation Nr: 0001396 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 96-50 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from September 1968 to June 1970. He died on July [redacted], 1995. The appellant is his widow. This appeal arises from an October 1995 rating decision of the Baltimore, Maryland, regional office (RO) which denied service connection for the cause of the veteran's death. This matter was Remanded by the Board of Veterans' Appeals (Board) in July 1998 for the purpose of obtaining additional factual and medical evidence, and it has been returned to the Board for appellate review. During the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (Court) held that a surviving spouse may be entitled, pursuant to 38 U.S.C.A. § 1318, and 38 C.F.R. § 3.22, to receive dependency and indemnity compensation benefits as if the veteran's death were service connected by demonstrating that the deceased veteran would hypothetically have been entitled to receive 100 percent disability compensation based on service- connected disability at the time of death and for a period of 10 consecutive years immediately prior to death, though he was for any reason (other than willful misconduct) not in receipt of that 100 percent compensation throughout that 10 year period. See Wingo v. West, 11 Vet. App. 307 (1998). This issue has not previously been considered by the RO and is not inextricably intertwined with the matter on appeal. Accordingly, the issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran died on July [redacted], 1995; according to the certificate of death, the immediate cause of death was a stab wound to the neck. 2. At the time of the veteran's death, service connection was in effect for post-traumatic stress disorder (PTSD), evaluated as 100 percent disabling and chronic lumbosacral strain, evaluated as 20 percent disabling. 3. The appellant's claim that the veteran's death was related to his service-connected PTSD is not accompanied by any credible medical evidence. 4. The appellant's claim of service connection for the cause of the veteran's death is not plausible. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The relevant facts are not in dispute and may be briefly summarized. The death certificate indicates that the veteran died on July [redacted], 1995, from a stab wound to the neck. No other causes of death were listed. The manner of death was determined to be homicide. At the time of his death, service connection was in effect for PTSD, evaluated as 100 percent disabling and chronic lumbosacral strain, evaluated as 20 percent disabling. The veteran died at the scene of the crime. An autopsy was performed. However, the autopsy report is not of record. As part of his claim for service connection for PTSD, the veteran was afforded a VA psychiatric examination in January 1986. He gave a history of three separate prison sentences between 1971 and 1985. He said he was found guilty of rape in 1971. However, he insisted that he was innocent of that charge. Shortly after serving a four-year term on the rape charge, the veteran stated he was involved in a fight that resulted in an assault conviction and a parole violation. He indicated he spent three years and eight months in jail. He stated he "went crazy" after his release from prison and committed a bank robbery. He said he was imprisoned for the bank robbery conviction from 1979 to May 1985. On mental status examination, there were no findings pertaining to homicidal or suicidal ideation. He did, however, express shame with regard to the criminal charges. The diagnoses were PTSD and passive-dependent personality disorder. The examiner opined that he was unable to determine to what extent the veteran's PTSD, as opposed to his personality disorder, was responsible for his social and industrial limitations. Service connection for PTSD was granted in April 1986. A 10 percent disability evaluation was assigned. The record shows that between 1986 and 1991 the veteran filed claims for increased evaluations of his service-connected disabilities. The medical records and examination reports obtained in connection with those claims show that the veteran received ongoing treatment for his PTSD. Of note, a report of a February 1988 VA psychiatric examination indicated that the veteran had not had any legal problems since his last release from prison. He also denied experiencing depression and indicated that recent therapy had helped to save his marriage. However, at a January 1989 VA examination, the veteran was observed to be complaining of flashbacks, nightmares, and episodes of severe depression. He denied being suicidal. There was no evidence of psychotic thinking. On VA examination in April 1991, the veteran showed a blunted affect as well as marked depression. He was constantly preoccupied with thoughts of suicide and said he frequently felt he would like to kill the people who he believed had persecuted him. He stated he was afraid to leave his home. His association was loose and the examiner speculated as to whether he could be psychotic. The veteran had a paranoid trend to his thinking that had not been previously described. He had completely socially isolated himself to the point where he was industrially incapacitated. His PTSD with passive dependent personality disorder was described as very severe. Based on the findings of the aforementioned medical records and examination reports, the 10 percent disability rating assigned to PTSD was increased to 30 percent, effective in February 1988. The 30 percent disability evaluation for PTSD was increased to 100 percent, effective in April 1991. In a letter dated in May 1993, the veteran's treating psychiatrist reported that the veteran continued to experience depressive and psychotic symptoms despite years of treatment. The physician recommended that the veteran be assigned a permanent total schedular disability rating. The veteran was afforded another VA psychiatric examination in June 1993. He said he continued to experience frequent nightmares and flashbacks pertaining to his wartime stressors. He reported being obsessed with thoughts of death and hopelessness about the future. He endorsed hyper- vigilance, an exaggerated startle response, irritability, and an inability to be around anyone except his wife. The impression was severe PTSD. The appellant filed a claim for service connection for the cause of the veteran's death in August 1995. Therein, she maintained that the strong medications, which he took to treat his PTSD, had prevented him from avoiding the confrontation that resulted in his death. She said she had been told by the homicide detective that the veteran had tried to separate two people from fighting, and that, in doing so, got involved in the altercation that eventually led to his being stabbed to death. The appellant asserted the veteran was not prone to running the streets, and that his medications usually prevented him from doing such. She stated PTSD had virtually incapacitated the veteran. A police report dated in July 1995 indicated that the veteran had been found unconscious with a stab wound at approximately four in the morning. He was pronounced dead at the scene of the crime. A supplementary report was noted to contain additional details including witness statements. Service connection for the cause of the veteran's death was denied in October 1995. The cause of the veteran's death was observed to have been a stab wound to the neck. The RO determined there was no evidence showing that the veteran's death was related to his service-connected PTSD. The appellant was afforded a personal hearing before a RO hearing officer in April 1997. She stated that the veteran had been acting very strange the two months prior to his death. She said his psychiatric symptoms had become more severe during this period. She recalled that the veteran had told a friend that he believed that he didn't have much more time to live. Lay statements from J.C. and C.A. reflecting similar thoughts were submitted at that time. The appellant said she was told by a homicide detective that the veteran had been killed in an altercation that he had initially tried to prevent. She could not understand what the veteran was doing in the "worse part of Baltimore" at four o'clock in the morning. She maintained the veteran usually avoided any type of conflict. She opined that the veteran's PTSD had him so "out of it" or depressed that he sought to place himself in a life-threatening situation. In other words, rather than committing suicide in a conventional manner, he intentionally placed himself in harms way. The appellant testified, however, that the veteran's treating physician was unwilling to express an opinion that would corroborate this allegation. Her representative asked that the VA inform her of what was necessary to present a well grounded claim for service connection for the cause of the veteran's death. He also requested the RO to obtain any additional investigative reports pertaining to the homicide. Medical records from the Baltimore VAMC dated from August 1991 to August 1993 show that the veteran received evaluations and treatment for PTSD. In February 1993, the veteran was admitted due to a recent history of suicide attempts. He said he had been found by his wife in the kitchen where he had tried to commit suicide by turning on the gas and sticking his head in the oven. He reported he had tried to kill himself a week earlier by jumping in front of a bus. He endorsed auditory hallucinations. The veteran said the voices he heard told him to kill himself and others. He was discharged in March 1993. The discharge diagnoses were depression with suicidal ideation, PTSD, and rule out personality disorder. Subsequent treatment records revealed that his condition underwent some improvement. In letters dated in May and June 1997, the RO requested the supplemental reports from the police that were referenced in the July 1995 police report. The police responded in October 1997 that the supplemental reports would not be forwarded because they contained witness information that had not been released. The matter was Remanded by the Board in July 1998. The Board requested that the appellant be apprised of the need to submit an objective medical opinion that would link the veteran's service-connected PTSD to his death by homicide. The RO was also asked to contact the appropriate police department and obtain all supplementary reports pertaining to the veteran's homicide. If the appellant was found to have submitted a well-grounded claim for service connection for the cause of the veteran's death, the Board indicated that a VA psychiatrist should be asked to render an opinion on the likelihood that the veteran's service-connected PTSD had any causal effect on his death by homicide. In a letter dated in August 1998, the RO asked the appellant to provide an objective medical opinion that linked the veteran's service-connected PTSD to his death by homicide. She was also requested to submit any additional police reports or autopsy reports that she could obtain. She was advised that her failure to submit this evidence could have an adverse affect on her claim. To date, the appellant has not responded to this inquiry. Medical records from the Baltimore VAMC dated from July 1993 to March 1995 were associated with the claims folder. Those records show that the veteran received routine treatment for his service-connected psychiatric condition. A January 1995 treatment note indicated that the veteran continued to "feel better" on Thorazine. While his hallucinations continued, he reported he had prolonged periods when he experienced no hallucinations. He denied having any command hallucinations. Similar findings were reported in March 1995. At that time, the veteran appeared bright and euthymic. The RO contacted a detective with the Baltimore police department in December 1998. The detective stated that the veteran's case was still an ongoing homicide investigation and no further information could be provided. He said he would be willing to discuss the case in person, but that he could not divulge any additional information pertaining to the investigation. The RO declined the detective's offer to meet in person. Service connection for the cause of the veteran's death was denied in February 1999. The RO found no evidence had been presented that showed that the veteran's death by homicide was due to his service-connected PTSD. The claim was held to be not well grounded. A supplemental statement of the case was mailed to appellant that same month. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(c) (1999). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be addressed in this case is whether the appellant has presented evidence of a well-grounded claim. If she has not presented a well-grounded claim, her appeal must fail, because the Board has no jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Because a well-grounded claim is neither defined by the statute nor the legislative history, it must be given a commonsense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Id. at 81. However, to be well grounded, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-263 (1992). The Court has held that evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant would not meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. A claim for service connection requires three elements to be well grounded. There must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the in-service injury or disease and the current disability (medical evidence). The third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Regarding claims for service connection for the cause of death of a veteran, the first requirement, evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die), but the last two requirements must be supported by evidence of record. Ramey v. Brown, 9 Vet. App. 40 (1996). In the instant case, the veteran's certificate of death indicates that he died from a stab wound to the neck. The death was ruled a homicide. The appellant has argued that the veteran's service-connected psychiatric disorder made him despondent and suicidal. Rather than taking his life directly, she contends the veteran intentionally sought out a dangerous situation that would lead to his death. Alternatively, she asserts the veteran's nervous condition, and/or the medications used to treat his PTSD, caused a state of confusion that prevented him from removing himself from an event that he would have otherwise avoided. In other words, the appellant maintains that the veteran's service-connected psychiatric disability caused or contributed substantially or materially to cause his death by homicide. To that end, the appellant has submitted no credible medical evidence to support her contentions. She has not offered any medical opinion that attributes the veteran's death by homicide to the presence of a psychiatric disability or manifestations of the disability, including the effects of prescribed medications used to treat the condition. Further, she has not presented any evidence that supports her allegation that the veteran's homicide was a means by which he was able to commit suicide and therefore related to his service-connected psychiatric disability. The appellant's opinion that the veteran's death was causally related to his service-connected PTSD does not meet this standard. As noted in Espiritu, lay persons are not competent to offer medical opinions. The appellant is not shown to be a health care professional, and the opinion she offered is beyond her competence to make. Finally, the Board wishes to express its deepest sympathy for the appellant's tragic loss of her husband, and also its appreciation of her obvious sincerity in pursuing this claim. However, the Board must decide cases based upon the facts and the law currently in effect, and not upon sympathy or good will. The Board has considered the doctrine of giving the benefit of the doubt to the appellant under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but the Board does not find the evidence is of such approximate balance as to warrant its application. ORDER Entitlement to service connection for the cause of the veteran's death is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals