Citation Nr: 0001430 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 96-00 071A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from March 1968 to October 1970. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appeal has been obtained. 2. Prior to the veteran's death, he had post-traumatic stress disorder (PTSD), which manifested as a result of his Vietnam combat experiences. 3. As a result of PTSD, the veteran was mentally unsound, and this mental unsoundness led to his suicide. CONCLUSION OF LAW The veteran's PTSD, arising out of service, was the underlying cause of his suicide. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.302, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board of Veterans' Appeals (Board) finds that the appellant's, the veteran's widow, claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). By this finding, the Board means that the appellant has presented a claim which is not implausible when the contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The veteran died in July 1993 of a self-inflicted gunshot wound of the head. At the time of his demise, service connection was not in effect for any disability. The appellant now contends that his suicide was the result of PTSD caused by service in Vietnam. Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110. The regulations also state that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (1999). Eligibility for a PTSD service-connection award requires: (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. Cohen v. Brown, 10 Vet. App. 128, 129 (1997); cf. 38 C.F.R. § 3.304(f) (The regulation does not specify the requirement for "a clear diagnosis of PTSD"). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Regarding PTSD, the Board, in reviewing the evidence of record, has given substantial probative weight to two VA examination reports received after the veteran's death. In this regard the Board notes that after his review, the initial examiner in September 1998 concluded that unquestionably the veteran had displayed symptoms of PTSD prior to his death. On additional review in December 1998, the examiner concluded that the bulk of the evidence seemed to suggest that the veteran had PTSD. These examination reports are consistent with the conclusions of L. A. S., M.D., who stated in a November 1994 letter that the underlying diagnosis in the veteran's case was undoubtedly PTSD. Thus, the Board finds that the evidence shows that current, clear diagnoses of PTSD have been made. The next determination to be made is whether the PTSD is the result of incidents in service. As this is a medical determination, the Board has again considered the examinations noted above. In November 1994, Dr. S. stated that the veteran's personality change was related to Vietnam. In the September 1998 examination, the examiner concluded that the PTSD was directly linked to his time in service. The examiner in December 1998 also found that the PTSD was secondary to Vietnam experiences. Thus, for the Board to conclude that the PTSD was the result of service, the Board must also verify the stressors reported. This is a factual determination, and within the Board's competence. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, occurrence of the claimed in-service stressor may be established by the veteran's lay testimony alone. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (1999). In this regard, the Board notes that the veteran served in Vietnam from June 1969 to September 1970. During this period, he was assigned as a parachute rigger, and served in Company C (Support and Service), 173rd Service Battalion, 173rd Airborne Brigade. Among his awards were the Bronze Star Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal. Prior to his death, the veteran did not report any stressors. Instead, the Board has considered the stressors reported by the veteran's surviving spouse, other relatives, and fellow veterans. In one letter, the veteran's sister stated that while in service, he often had to jump into drop zones, not knowing if the enemy was already there. She also stated that the veteran had come upon an armed Viet Cong woman and her child, and killed them, as he had no choice - kill or be killed. On substantive appeal dated in January 1996, the appellant indicated that the veteran fought and faced death in combat, on patrol, in sapper attacks and in ambushes. A fellow serviceman of the veteran, who was in the veteran's unit, provided a number of letters relating to activities during that period. He indicated that they drove in convoys that were often ambushed; that they underwent mortar fire every night, which prevented them from sleeping; and that he pulled bunker guard with the veteran, during which they stared out into the jungle and waited for an attack. Another fellow veteran indicated that the veteran was with him when he was wounded in October 1969. Additionally, records secured from the United States Armed Services Center for Research of Unit Records (USASCRUR) have been considered. These records both support and refute the contentions raised by the appellant, the veteran's family, and fellow veterans. Although this evidence establishes that the unit to which his wounded fellow veteran was assigned was not attached to the veteran's unit at the time the veteran was in Vietnam, the records do indicate that the veteran's unit was involved in convoy duty, where they sustained fire. The unit to which the veteran was assigned, it was concluded in a November 1998 letter, was involved in combat operations. In VAOPGCPREC 12-99 (October 18, 1999), the VA General Counsel (GC) found that "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The determination rests on the facts of each case, and the benefit of the doubt rule applies as to a determination as to whether the veteran engaged in combat. Here, the evidence supports the conclusion that the veteran was involved in convoys, bunker guards, and ambushes. The Board has considered the statements from not only the appellant, but also from fellow veterans. The type of combat operations reported are consistent with the daily staff journals and the operations reports/lessons learned secured by the USASCRUR. Accordingly, the Board finds that for the purpose of verifying the reported stressors, the veteran engaged in combat during his period in Vietnam. Under the provisions of 38 C.F.R. § 3.304(f), lay testimony may then be accepted as sufficient verification of the claimed stressors, provided the stressors are consistent with the circumstances, conditions and hardships of the veteran's combat service. Here, the Board concludes that service on convoys, guard duty and patrols are consistent with what would have been expected from a soldier assigned to a support unit of a infantry brigade heavily engaged in combat. Accordingly, the Board concludes that the appellant has met her duty of verifying the in-service stressors, and as such, the evidence shows that the veteran's PTSD arose out of his combat experiences in service. 38 U.S.C.A. §§ 1110, 5107(b); Cohen v. Brown, 10 Vet. App. 128; Sheets v. Derwinski, 2 Vet. App. 512 (1992); 38 C.F.R. §§ 3.303, 3.304(f). In light of the foregoing, the Board must now determine if service connection is warranted for the cause of the veteran's death. Generally, in order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered to be the principal cause of death when it, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 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). Specifically, service connection may be granted for the cause of death by suicide where it is established that at the time of death there was mental unsoundness due to or the proximate result of a service connected disease or injury. Where the evidence shows no reasonable adequate motive for suicide, it will be considered to have resulted from mental unsoundness and the act itself considered to be evidence of mental unsoundness. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances that could lead a rational person to self- destruction. 38 U.S.C.A. § 1310; Sheets v. Derwinski, 2 Vet. App. 512; 38 C.F.R. § 3.302. In the absence of a determination of an unsound mind, a veteran's death by suicide would be considered the result of his own willful misconduct, and service connection for the cause of death would be precluded. 38 C.F.R. §§ 3.301(a), 3.302(a). The determination as to the cause of the veteran's suicide is medical in nature. Thus, the Board must again consider the reports of medical review conducted by VA physicians. After reviewing the evidence of record, in the September 1998 review, the examiner concluded that the veteran's PTSD was a direct contributing factor to the cause of the veteran's death. Additionally, in the December 1998 review, the examiner found that the veteran had PTSD secondary to his Vietnam experiences, which contributed to his eventual suicide. Dr. S., in November 1994, also found that the veteran's PTSD was a major contributing cause to his demise. Based on these medical conclusions, and the absence of any contradictory evidence, the Board holds that the veteran's suicide was the result of mental unsoundness brought about by PTSD caused by his service. Accordingly, service connection for the cause of the veteran's death is appropriate, and to that extent, the appellant's appeal must be granted. 38 U.S.C.A. §§ 1310, 5107(b); 38 C.F.R. §§ 3.302, 3.312. At this time, it is noted that on the Certificate of Death, "alcohol intoxication" was noted as a significant condition contributing to death. As previously mentioned, in the absence of a determination of an unsound mind, a veteran's death by suicide would be considered the result of his own willful misconduct, and service connection for the cause of death would be precluded. 38 C.F.R. §§ 3.301(a), 3.302(a). In this regard, the Board reiterates that the evidence shows that the veteran's suicide was the result of mental unsoundness brought about by PTSD. It is also noted that in November 1994, Dr. S. stated that the veteran's issues of chemical usage and his depression were reactionary psychodynamic issues associated with the PTSD. The underlying diagnosis, without a doubt, was PTSD. Given the foregoing, in spite of the veteran's alcohol intoxication at the time of his death, the evidence shows that the veteran was of an unsound mind and as such, service connection is not precluded. Id. It is also noted that during the pendency of the appeal the appellant alleged that service connection for the cause of the veteran's death was warranted because of his in-service Agent Orange exposure and because of his cancer of the bladder and kidney. As previously noted, service connection for the cause of the veteran's death has been granted. Thus, the appellant's contentions with respect to those matters are rendered moot and warrant no additional consideration. ORDER Service connection for the cause of the veteran's death is granted. C. Crawford Acting Member, Board of Veterans' Appeals