Citation Nr: 0007265 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 97-22 675 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from December 1982 to December 1986. He is deceased, and the RO has recognized the appellant as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from an August 1996 RO decision which denied service connection for the cause of the veteran's death. The RO properly notes that a favorable finding on service connection for the cause of the veteran's death would result in Dependency and Indemnity Compensation (DIC) and eligibility for Chapter 35 educational assistance for survivors, but the Board does not construe these to be separate issues. FINDINGS OF FACT 1. The veteran died years after service as the result of suicide by a self-inflicted gunshot wound. 2. At the time of the veteran's death, service connection was in effect for left knee chondromalacia patella, and this disability played no role in his death. 3. While the veteran's suicide was the result of mental unsoundness, a psychiatric condition was not present in service or for years later, and mental unsoundness leading to suicide was not caused by service or by the service-connected left knee disorder. CONCLUSION OF LAW A service-connected disability did not cause or contribute to the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. §§ 3.302, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual Background The veteran served on active duty in the Army from December 1982 to December 1986. His service medical records are negative for a psychiatric disorder. The service medical records note treatment for a left knee disability, including arthroscopinc surgery. At the October 1986 service separation examination, the psychiatric system was normal. The left knee showed some slight swelling below and behind the patella. The veteran filed a claim for service connection for a left knee condition in January 1987. A VA general medical examination in April 1987 noted a normal psychiatric system. There was slight left knee effusion, and the diagnosis was history of left knee chondromalacia. An April 1987 orthopedic examination noted a history of left knee chondromalacia with a stable knee. In June 1987, the RO granted service connection for left knee chondromalacia patella, and a noncompensable rating was assigned. During the remainder of his life, the veteran did not file for an increased rating for the left knee condition, and the noncompensable rating continued. VA treatment records (submitted after the veteran's death) show that from 1987 to 1992 he received periodic treatment for various ailments including his left knee condition; there were no complaints, findings, or diagnosis of psychiatric illness. As to the left knee, the records show sports injuries, and in August 1988 and October 1989 the veteran had arthroscopic surgery for a torn meniscus and degenerative changes. He was seen again with left knee symptoms in July 1990, September 1991, and November 1992. On the last visit in November 1992, he was treated with an injection and responded with good results. The diagnoses were left knee pain, early degenerative joint disease, and rule out meniscus tear. Motrin was prescribed, and he was to have an MRI of the knee. The veteran's death certificate shows he died of a gunshot wound to the temple in December 1992. The death was held to be a suicide. In June 1996, the appellant filed a claim for service connection for the cause of the veteran's death, in order to obtain DIC. In a statement of marital relationship received in June 1996, the appellant claimed that she and the veteran had a common law marriage and lived together from January 1991 to August 1992 (several months before he died). She noted that she and the veteran were having difficulties due to her pregnancy (she bore the veteran's son shortly after his death) and his service-related therapy for musculoskeletal problems. Accompanying statements from the appellant's sister and cousin and from the veteran's cousin are to the combined effect that the appellant and the veteran were having problems over her pregnancy, since the veteran was not ready to have a child, but before he died he came to accept his responsibility of having the child. It was reported that the veteran planned to legally marry the appellant after financial problems were straightened out and before their child was born. In an August 1996 administrative decision, the RO held that a common law marriage existed between the appellant and the veteran, and that she was his widow. In an August 1996 letter, the appellant claimed that she had a discussion with the veteran about how he felt down and sad and how his family made him feel. He expressed that the military taught him how to survive, but also not to be afraid of death. She said she felt the military played some role in his suicide because of what the Army taught him about beliefs, failures, committing, and trying to succeed in life. At a hearing at the RO in October 1997, the appellant testified that the veteran fixated on the time he had spent in the military, stating that the military taught him to be a good man and that he had not learned this from his family. She said that he had complained about his knee injury a lot. She said that the veteran told her he had received psychiatric treatment from a VA outpatient clinic in 1992. Subsequent to the hearing, the previously summarized VA medical records were obtained, and these showed no psychiatric treatment. Later in October 1997, the appellant submitted a letter in which she noted she found out that when the veteran said he was going to the VA for depression he actually was seen for his left knee pain. She claimed that he indicated that in addition to his family his knee was upsetting him. In November 1997 correspondence, the veteran's cousin reported that on one occasion the veteran had been unable to continue helping her move furniture because of left knee pain, and that the veteran appeared depressed in 1992 and confided in her that he was concerned about his left knee disability. She opined that the veteran committed suicide because of his left knee condition and that he had no other situation causing him any stress. In November 1997 correspondence, Arthur C. Walsh, M.D., reported that he had reviewed the veteran's file and interviewed the appellant about the veteran's suicide, which she felt was due to chronic knee pain. It was noted that the appellant reported that during 1992 the veteran was depressed, down, and not eating much. Dr. Walsh noted that from medical records it appeared that the veteran's depression was not recognized or treated during VA assessments, and that this should be considered in awarding DIC benefits, since the knee pain caused his depression and suicide. In a February 1999 statement, the appellant reiterated her prior assertions on the cause of the veteran's death. In April 1998 a VA psychiatrist reported that that he had reviewed the veteran's entire claims file to answer the question of whether the veteran's suicide was due to depression caused by his service-connected left knee condition. He acknowledged the statement from Dr. Walsh, as well as all the medical and lay statements of record. He said that it was his psychiatric opinion, with most reasonable certainty, that one could not find supporting evidence to conclude that the veteran took his life due to his left knee problems. The VA doctor noted that the veteran's knee condition was not totally disabling, but was chronic with episodic exacerbation, and that it showed some beneficial clinical response to care. The VA doctor noted that concerns over impending fatherhood and the associated relationships and responsibilities could equally be hypothesized to have been relevant in the decision to take his life. The doctor concluded that it was not possible to come to a definitive answer on why the veteran committed suicide. II. Analysis The appellant's claim for service connection for the cause of the veteran's death is well grounded, meaning plausible; the RO has properly developed the evidence, and there is no further VA duty to assist in this claim. 38 U.S.C.A. § 5107(a). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service was either the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In certain instances, service connection may be granted for the cause of a veteran's death by suicide. It is a constant requirement that the precipitating mental unsoundness, leading to suicide, be service connected. 38 C.F.R. § 3.302. [This regulation notes that at times suicide may not be due to mental unsoundness, but rather be the result of an intentional act by a rational person, in which case it would be deemed to be due to willful misconduct and a bar to a finding of service connection for the cause of the veteran's death. In the instant case, the Board has assumed that the veteran's suicide was due to mental unsoundness.] Service connection may be granted for a disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Secondary service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence shows the veteran served on active duty from 1982 to 1986, and he died as the result of suicide (self- inflicted gunshot wound) in 1992. His only service-connected disability, was left knee chondromalacia patella, rated noncompensable. There is no contemporaneous medical evidence of any psychiatric disorder during or after service. The appellant initially claimed that the veteran's mental state, leading to suicide, was generally due to his service experiences, and she said the veteran had received psychiatric treatment before his death. After learning that the veteran had received no psychiatric treatment, the appellant primarily argued that the veteran's service- connected left knee disability led to depression/mental unsoundness which prompted him to kill himself. The Board notes that the veteran's service-connected left knee disorder was only rated noncompensable. Although medical records (obtained after the veteran's death) suggest the left knee condition would have been rated compensable (had the veteran filed for an increased rating during his lifetime), there is nothing to suggest that this was such a major medical problem as would lead to secondary mental illness. In fact, given the lifetime medical records, the theory that the service-connected left knee disorder drove the veteran to suicide seems far-fetched. The statements of the appellant and her relatives, as to the cause of the veteran's death by suicide, do not constitute probative evidence since, as laymen, they lack competence to give medical opinions on causality. Espiritu v. Derwinski, 2 Vet. App. 492. The appellant has secured a statement from Dr. Walsh, who opined that the veteran's knee pain caused depression and suicide. Dr. Walsh never saw the veteran, and his medical opinion is predicated on the appellant's account of the veteran emotional and physical state prior to his death. The appellant's account lacks credibility, and thus the value of the doctor's opinion can be no better. The doctor said that he reviewed the veteran's VA file (which is negative for a psychiatric condition), but cites no evidence for his conclusion other than the appellant's account of the veteran's intent in the suicide. Given all the circumstances, the statement by Dr. Walsh has little probative value. In contrast to the private doctor, a VA psychiatrist closely reviewed all the medical and other records on file and submitted a detailed report which opined that there is no supporting evidence that the veteran's suicide was due to his left knee problem. The Board finds the VA doctor's opinion to be most persuasive, given the careful analysis of such opinion. The VA medical opinion is also consistent with the veteran's lifetime medical records. The weight of the credible evidence demonstrates that the veteran's mental unsoundness, resulting in his suicide, was not caused by any incident of service or by the service- connected left knee disorder. The service-connected left knee disorder played no role in the veteran's death. A service-connected disability did not cause or contribute to the veteran's death, and the requirements for service- connection for the cause of his death are not met. The preponderance of the evidence is against the claim for service connection for the cause of the veteran's death. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the veteran's death is denied. L. W. TOBIN Member, Board of Veterans' Appeals