Suicide

[vet201060]

If a disabled vet is 50% adjustment disorder/depression will the spouse and children get the compensation? Thanks

[Pete53]

Larry:

A reasonable probability of service-connected (SC) death exists if, based on a rating decision made during the Veteran’s lifetime, one or more of the following exists:

service connection was granted for any chronic disease under 38 C.F.R. § 3.309

service connection was granted for a condition affecting any vital organ, or

the Veteran

had at least one SC disease or disability evaluated at 50 percent or more disabling

was rated 100 percent for an SC disease or disability, or

was entitled to individual unemployability

Generally, a person of unsound mind is incapable of forming intent, which is an essential element of willful misconduct.

I have seen claims awarded for DIC after suicide

[LarryJ]

Larry:

A reasonable probability of service-connected (SC) death exists if, based on a rating decision made during the Veteran’s lifetime, one or more of the following exists:

service connection was granted for any chronic disease under 38 C.F.R. § 3.309

service connection was granted for a condition affecting any vital organ, or

the Veteran

had at least one SC disease or disability evaluated at 50 percent or more disabling

was rated 100 percent for an SC disease or disability, or

was entitled to individual unemployability

Generally, a person of unsound mind is incapable of forming intent, which is an essential element of willful misconduct.

That's interesting, Pete. I've never ran across this situation (and sincerely hope that I NEVER DO) but I figger that the way the VA denys perfectly legitimate claims that this "grey area" (whether the person was of sound mind, which of course, it can be argued that they obviously WERE NOT, or they would not have committed suicide), that this "grey area" would give the VA the opportunity to deny the claim on the grounds of willful misconduct.

Regardless, let's us not have any of our folks here "testing the system". PLEASE.

If you feel that you need to know whether your family will be "taken care of" or whether they will "be better off" with you gone..........then PLEASE, PLEASE call the suicide hot line, go to the VA, go to the nearest hospital, call your pastor, reach out, do something, but make sure you do not leave your loved ones to have to deal with the VA, for, that's worse than anything I could imagine, especially after having had to deal with your suicide.

Something I wouldn't wish on my worst enemy, and especially not my loved ones.

(of course, I don't HAVE any enemys...........I don't allow it!). ;)

[Philip Rogers]

vet201060 - $1154, plus any COLA's, a month for life or until they remarry. There is some additional if there are minor children.

pr

How much is DIC a month? How long does it last? Thanks for the info.

[Philip Rogers]

The VA doesn't consider suicide "willful misconduct", due to the reason Pete53 stated.

pr

[carlie]

Here's a 2009 BVA Case that provides a clear cut answer and the reasons why.

http://www4.va.gov/vetapp09/files3/0920020.txt

Citation Nr: 0920020

Decision Date: 05/29/09 Archive Date: 06/08/09

DOCKET NO. 06-18 602 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in New

Orleans, Louisiana

THE ISSUE

Entitlement to service connection for the Veteran's cause of

death.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel

INTRODUCTION

The Veteran served on active duty from September 1942 to

August 1945. The appellant is the Veteran's surviving

spouse.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a March 2005 decision by the

Department of Veterans Affairs (VA) Regional Office (RO) in

New Orleans, Louisiana.

Please note this appeal has been advanced on the Board's

docket pursuant to 38 C.F.R. § 20.900© (2008). 38 U.S.C.A.

§ 7107(a)(2) (West 2002).

FINDINGS OF FACT

1. The Veteran served on active duty from September 1942

until he committed suicide on August [redacted], 1945.

2. The Veteran's suicide was not due to willful misconduct

and was in the line of duty.

3. The appellant was married to the Veteran at the time of

his death.

4. The appellant remarried in November 1945.

5. The appellant previously sought entitlement to Dependency

and Indemnity Compensation (DIC) benefits on behalf of her

and the Veteran's child, born in September 1945. The claim

was denied in November 1947. The appellant was not eligible

for such benefits at that time.

6. The appellant's second husband died in December 2004.

7. The appellant's claim for DIC benefits is an original

claim for such benefits on her behalf.

CONCLUSION OF LAW

A service-connected disability caused or contributed

substantially or materially to the cause of the veteran's

death. 38 U.S.C.A. §§ 103, 105, 1110, 1112, 1310 (West

2002); 38 C.F.R. 38 C.F.R. §§ 3.1, 3.50, 3.55, 3.301, 3.302,

3.303, 3.304, 3.312 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Background

The Veteran served on active duty from September 1942 until

his death on August [redacted], 1945. The Veteran committed suicide

at that time by shooting himself. An official investigation

report from that time reflects that the Veteran had gone

absent without leave (AWOL) from his command for 55 minutes

on August 17, 1945. He was later arrested that same day by

the shore patrol (SP) in a nearby city. He was returned to

his command for confinement pending captain's mast

(nonjudicial punishment or NJP).

The Veteran was on a work detail, as a prisoner, on August

[redacted], 1945. He was being transported in a truck with another

prisoner and a guard. The Veteran took the sidearm from the

guard and escaped from the truck. He eventually committed

suicide by shooting himself with the sidearm.

The Navy investigating officer determined that there was no

reason for the Veteran to commit suicide. The same

investigating officer cited to several Navy regulations for

the purpose of showing that the act of suicide itself

overcomes the normal presumption of sanity. Further the Navy

Department presumption that no sane man would take their life

without reasonable or adequate motive was not controverted in

this case. The investigating officer concluded that the

Veteran's death was not the result of his own misconduct and

was in the line of duty.

The commanding officer of the unit prepared an endorsement to

the investigation report to the Secretary of the Navy in

August 1945. The facts were restated essentially as in the

original report. The endorsement noted that there was no

evidence of motive for suicide. Further, the Veteran's death

was not the result of a violation of law or Navy regulations

and was not caused by the intent, fault, negligence, or

inefficiency of any person in the Naval Service. Finally,

the commanding officer concluded that the death of the

Veteran was not the result of his own misconduct and was in

the line of duty.

The Office of the Judge Advocate General for the Navy

endorsed the report in November 1945. The endorsement said

that the death was not the result of the Veteran's own

willful misconduct and that a determination of line of duty

by the Navy Department was not necessary in this case. A

final endorsement sending the report to the Bureau of

Personnel (BuPERS) was added in December 1945.

The Veteran's personnel records show that he initiated an

allotment to pay premiums for National Service Life Insurance

(NSLI) in October 1942. He named his mother as the principal

beneficiary. VA received a notice from the Veteran

requesting that his allotment be stopped in May 1945. The

form noted the reason for the request was that the Veteran

was a general court-martial prisoner.

The Veteran made a second application for a NSLI policy on

August 3, 1945. He listed the appellant as his principal

beneficiary. The application also included a physical

examination that was conducted at Camp Peary, Virginia, in

July 1945. No psychiatric symptoms were noted and the

Veteran did not report any prior history of nervous problems.

A NSLI certificate was issued to show an insurance policy was

in effect from August 3, 1945. It was signed in February

1946.

VA wrote to the Navy Department to find out whether the

Veteran was discharged from service in September 1945. The

request asked for the report of offense, findings, and

sentence of the court-martial. A response was received that

the Veteran was returned to duty. A second response was

received that informed of the Veteran's death in February

1946.

VA wrote to the appellant to assist her in submitting a claim

for NSLI benefits in April 1946. VA also wrote to the

appellant in May 1946. She was informed that she may be

entitled to a pension in addition to any insurance benefits.

The appellant submitted her claim for the NSLI benefits in

May 1946.

The appellant also submitted a claim for DIC/pension benefits

in June 1946. The appellant informed VA that she had

remarried in November 1945 and that the claim was on behalf

of the child born of the marriage between her and the Veteran

in September 1945. The appellant was asked to provide a copy

of her certificate of marriage. The appellant provided a

copy that showed her and the Veteran were married in October

1944.

Concurrent to the above actions, VA had also contacted the

Navy to obtain information about the Veteran's service, to

include his duty stations, advancements, reductions, and a

history of all disciplinary actions.

The Navy provided a transcript of the Veteran's service that

listed his duty assignments, his advancements and his

reductions in pay grade in August 1946. The Navy also

provided a summary of the Veteran's disciplinary actions in

September 1957. The list included:

- August 22, 1943. A deck court-martial for being

absent over leave (AOL) from 1730 August 14, 1943, to August

16, 1943. The Veteran was tried on August 18, 1943, and the

charge proved by plea. The sentence was to perform extra

punitive duties (EPD) for a period of one month and a fine of

$10 per month for three months. The convening authority

mitigated the punishment to perform EPD for two months and a

loss of pay of $10 for one month.

January 17, 1945. A captain's mast for attempting to

smuggle mail out of the brig. The Veteran was sentenced to

three days of solitary confinement on bread and water.

January 25, 1945. An erroneous mark of desertion was

removed from the Veteran's record. It was noted that he was

tried and convicted on a charge of AOL and not desertion.

February 27, 1945. A deck court-martial for using

disrespectful language to a superior officer and wearing

other than regulation uniform of said rating. The charges

were proved by plea. The Veteran was sentenced to

confinement for five days and to forfeit $10 a month for two

months. The convening authority approved the sentence on

February 27, 1945.

March 31, 1945. The Veteran was declared a straggler as

he had been AWOL since 1300 on March 30, 1945.

The evidence of record does not record a disposition for any

punitive action that may have been taken in regard to the

last AWOL status in March 1945. The Board notes that the

issue of the Veteran being a prisoner as a result of a

general court-martial was noted at the time his NSLI premium

was stopped in May 1945. The Board further notes that a

query to the Navy shows that the Veteran was restored to

duty. There is no evidence of record that informs as to any

general court-martial proceeding as in the charges, date of

trial, or disposition. It is not clear from the evidence of

record then whether the Veteran was a prisoner pending a

trial or as the result of a conviction and sentencing in May

1945. Clearly, if the Veteran was convicted of any

offense(s) at a general court-martial no discharge was

awarded as punishment as he was restored to duty.

The Board also notes that the transcript of the Veteran's

service does record his advancements and reductions in pay

grade. He entered service as an apprentice seaman in

September 1942. He was advanced to seaman second class in

November 1942. He was later advanced to seaman first class

in May 1944. The Veteran was reduced to seaman apprentice on

May 4, 1945. He was then advanced to seaman second class on

August 4, 1945, approximately two weeks prior to his death.

It is reasonable to conclude that the reductions in pay grade

would be the result of disciplinary action. The reduction in

May 1945 was notable in that the Veteran was reduced two pay

grades; however, he was advanced back to seaman second class

within three months.

The evidence of record shows that the Veteran was pending a

captain's mast, or NJP, at the time of his death.

The RO issued an administrative decision in October 1947.

The decision was that the Veteran's cause of death was not

service-connected because it was due to his own willful

misconduct. The decision noted the circumstances of the

Veteran's death as detailed in the investigating officer's

report. It was noted that the Veteran's service treatment

records (STRs) were negative for any indication of mental

unsoundness. The following paragraphs contained the

rationale of the decision:

The Navy Department held that death

was not due to misconduct on the

theory of presumption of insanity

indulged in by the Department.

Since the question of insanity is

one of fact for pension purposes,

and in the absence of any evidence

thereof, it is held that death was

not incurred in line of duty.

It is pertinent to state that the

deceased's previous record of

offenses and sentences was

extensive. In the opinion of this

Board, pending disciplinary action

could have motivated the deceased to

attempt to escape.

VA administrative decision of October 22, 1947.

VA denied the DIC claim submitted by the appellant on behalf

of her and the Veteran's child in November 1947. The basis

for the denial was that the Veteran's death was considered

not to be in the line of duty and due to his own willful

misconduct.

The appellant's representative at the time queried the RO on

the status of the claim for the child's DIC benefits in April

1949. The RO responded that same month that the claim had

been denied and notice of the denial had been provided in

November 1947. It was noted that the appeal period had

expired and there was no evidence of an appeal having been

submitted.

Associated with the claims folder is a favorable ruling by VA

to award a special NSLI dividend to the Veteran's child in

December 1950. The several claims forms and information

gathered in conjunction with the application for the dividend

clearly denote the appellant as the Veteran's remarried widow

and the custodian of the child.

The Chief VA attorney in Shreveport, Louisiana, wrote to the

Chief, Dependents & Beneficiaries claims division in December

1954. The letter inquired whether the Veteran's minor child

was entitled to any death benefits. The claims division

office replied that same month and informed that a prior

claim for benefits was disallowed in October 1947. The basis

for the denial was that the Veteran's death was not incurred

in the line of duty and was due to his own willful

misconduct.

The appellant submitted her claim for DIC benefits in January

2005. She noted the Veteran's date of death in service and

that she had received his life insurance benefits. She also

said she had remarried shortly after the Veteran's death and

did not ever recall submitting a claim for DIC benefits. She

also reported the death of her second husband in December

2004.

The RO denied her claim in March 2005. The basis for the

denial was that the previous administrative determination

held that the Veteran's death was not in the line of duty and

was the result of willful misconduct.

The appellant disagreed with the decision in April 2005. She

noted that the Navy had concluded the Veteran's death was in

the line of duty and not due to misconduct.

The RO wrote to the appellant to provide her with the notice

required under the Veterans Claims Assistance Act (VCAA) in

August 2005. The RO advised that the "appellant's" claim

was previously denied in November 1947. The letter explained

the Navy's determination was based on a presumption of

insanity and VA found no evidence of mental unsoundness. The

letter also advised the appellant that she was required to

submit evidence that the Veteran's mental unsoundness was due

to service and that there was no reasonable adequate motive

for suicide shown by the evidence. Finally, the letter noted

that, in the prior determination, VA found that impending

disciplinary action could have foreseeably served as an

adequate motive for suicide.

The RO issued a statement of the case (SOC) in May 2006. The

SOC restated the basic elements of the circumstances of the

Veteran's death and the findings by the Navy. The SOC went

on to state "[t]he [V]eteran had been in trouble most of his

term of service and at the time of his death knew he was

facing a dishonorable discharge." The SOC further

explained:

Our determination is that the Navy

find[ings] are patently inconsistent

with the requirements of laws

administered by the Department of

Veterans Affairs. Requirements as

to line of duty are not met if at

the time the injury was suffered or

disease contracted the veteran was

confined under a sentence of a

court-martial involving an

unremitted dishonorable discharge.

VA SOC dated May 9, 2006. The paragraph appears to be an

incomplete summary of and citation to the provisions of

38 C.F.R. § 3.1(m) (2008).

The appellant perfected her appeal in May 2006. She noted

the inconsistency of the RO's assessment and that the RO was

engaging in speculation as to any type of

separation/discharge that may have been involved, if one was

at all. Further, the appellant cited to the regulatory

definitions for line of duty and willful misconduct and

argued that both definitions supported her claim for

benefits.

II. Analysis

A. Status as Surviving Spouse

A surviving spouse is eligible to receive DIC payments.

38 U.S.C.A. § 1310 (West 2002). To be recognized as the

veteran's surviving spouse for the purpose of establishing

entitlement to VA death benefits, the appellant must be a

person of the opposite sex whose marriage to the veteran

meets the requirements of 38 C.F.R. § 3.1(j) and who was the

spouse of the veteran at the time of the veteran's death and:

(1) who lived with the veteran continuously from the date of

marriage to the date of the veteran's death except where

there was a separation which was due to the misconduct of, or

procured by, the veteran without the fault of the spouse; and

(2) except as provided in 38 C.F.R. § 3.55, has not remarried

or has not since the death of the veteran and after September

19, 1962, lived with another person of the opposite sex and

held himself or herself out openly to the public to be the

spouse of such other person. 38 U.S.C.A. § 101(3) (West

2002); 38 C.F.R. § 3.50 (2008).

At the outset it is noted that the appellant was married to

the Veteran at the time of his death. This was proven both

by the Veteran's submission of insurance forms naming her as

his spouse and the marriage license submitted by the

appellant. They were married in October 1944 and were

married until the Veteran's death on August [redacted], 1945. The

evidence supports that theirs was a valid marriage under the

laws of Louisiana. 38 C.F.R. § 3.1(j) (2008).

The appellant remarried following the Veteran's death;

nevertheless, she is considered the surviving spouse of the

Veteran for the current claim due to the termination of her

subsequent marriage by death. 38 C.F.R. § 3.55(a)(3).

Indeed, 38 C.F.R. § 3.55(a)(3) provides that (on or after

October 1, 1998) remarriage of a surviving spouse terminated

by death, divorce, or annulment, will not bar the furnishing

of dependency and indemnity compensation (DIC), unless the

Secretary determines that the divorce or annulment was

secured through fraud or collusion.

In the instant case, the appellant was married to the Veteran

at the time of his death in August 1945. She remarried in

November 1945. Her second marriage was terminated by the

death of her second husband after October 1, 1998, and thus

she may be considered the "surviving spouse" of the veteran

for DIC purposes under 38 C.F.R. § 3.55(a)(3). The RO has

not questioned the fact of the death of the appellant's

second husband.

The RO initially denied the appellant's claim based on the

prior administrative decision of October 1947 and the

determination that the Veteran's death was not in the line of

duty and was due to his own willful misconduct. This aspect

will discussed further infra. The RO later wrote to the

appellant in August 2005 and told her that her prior claim

had been denied in November 1947. The latter statement is

not correct.

The appellant has not previously submitted a claim for DIC

benefits for herself. She notified VA of her remarriage in

November 1945 in 1946. She was not a surviving spouse of the

Veteran at the time she submitted the claim for DIC benefits

on behalf of her and the Veteran's child in 1946. Thus, she

was not eligible for any DIC benefits in her own right.

Further, the 1947 denial notice to the appellant clearly

addressed the claim as being filed on behalf of the child.

VA also acknowledged the status of the prior claim as being

on behalf of the child in the response to the appellant's

representative in April 1949. The same acknowledgement was

made in the response to the VA Chief attorney in Shreveport

in December 1954.

The appellant regained her status as a surviving spouse upon

the death of her second husband in December 2004. Moreover

she had never submitted a previous claim for DIC benefits for

herself. Thus, the current claim represents an initial claim

on her part for DIC benefits as the surviving spouse of the

Veteran.

Line of Duty/Willful Misconduct

According to applicable laws and regulations, service

connection for the cause of a veteran's death requires

evidence that a service-connected disability was the

principal or contributory cause of death. 38 U.S.C.A. §

1310; 38 C.F.R. § 3.312(a) (2008). For a service-connected

disability to be the principal cause of death, it must

singularly or jointly with some other condition be the

immediate or underlying cause of death, or be etiologically

related thereto. 38 C.F.R. § 3.312(b). For a service-

connected disability to be a contributory cause of death, it

must be shown that it contributed substantially or

materially, combined to cause death, or aided or lent

assistance to the production of death. 38 C.F.R. § 3.312©.

The law provides that service connection may be granted for

disability resulting from disease or injury incurred in or

aggravated by service. 38 U.S.C.A. § 1110 (West. 2002); 38

C.F.R. §§ 3.303, 3.304 (2008). An injury or disease incurred

during active military service is deemed to have been

incurred in the line of duty and not the result of a

veteran's own misconduct, unless the injury or disease was a

result of the person's own willful misconduct or abuse of

alcohol or drugs. 38 U.S.C.A. § 105(a) (West 2002);

38 C.F.R. § 3.301 (2008). See Smith v. Derwinski, 2 Vet.

App. 241, 244 (1992) (38 U.S.C.A. § 105(a) creates a

presumption that an injury or disease is incurred in the line

of duty that must be rebutted by a preponderance of the

evidence); see also Thomas v. Nicholson, 423 F.3d 1279, 1284-

85 (Fed. Cir. 2005) (Preponderance of the evidence was the

proper evidentiary standard necessary to rebut a § 105(a)

presumption of service connection for injuries that occurred

during active duty).

A service department finding that injury, disease, or death

occurred in line of duty will be binding on VA unless it is

patently inconsistent with the requirements of laws

administered by VA. 38 C.F.R. § 3.1(m) (2008). Requirements

as to line of duty are not met if, at the time the injury was

suffered or disease contracted, the Veteran was avoiding duty

by desertion, or was AWOL which materially interfered with

the performance of military duty; confined under a sentence

of court-martial involving an remitted dishonorable

discharge; or confined under sentence of a civil court for a

felony as determined by the laws of the jurisdiction where

the person was convicted by such court. 38 C.F.R.

§ 3.1(m)(1)-(3).

Willful misconduct means an act involving conscious

wrongdoing or known prohibited action (malum in se or malum

prohibitum). It involves deliberate or intentional

wrongdoing with knowledge of or wanton and reckless disregard

of its probable consequences. Mere technical violation of

police regulations or ordinances will not per se constitute

willful misconduct. Willful misconduct will not be

determinative unless it is the proximate cause of the injury,

disease, or death. See 38 C.F.R. § 3.1(n) (2008); see also

Daniels v. Brown, 9 Vet. App. 348, 350 (1996).

In order for suicide to constitute willful misconduct, the

act of self-destruction must be intentional. A person of

unsound mind is incapable of forming an intent (mens rea, or

guilty mind, which is an essential element of crime or

willful misconduct). It is a constant requirement for a

favorable action that the precipitating mental unsoundness be

service connected. 38 C.F.R. § 3.302(a) (2008).

Whether a person, at the time of suicide, was so unsound

mentally that he or she did not realize the consequences of

such an act, or was unable to resist such impulse is a

question to be determined in each individual case, based on

all available lay and medical evidence pertaining to his or

her mental condition at the time of suicide. The act of

suicide or a bona fide attempt is considered to be evidence

of mental unsoundness; therefore, where no reasonable

adequate motive for suicide is shown by the evidence, the act

will be considered to have resulted from mental unsoundness.

A reasonable adequate motive for suicide may be established

by affirmative evidence showing circumstances which could

lead a rational person to self-destruction. 38 C.F.R. §

3.302(b) (2008).

Affirmative evidence is necessary to justify reversal of

service department findings of mental unsoundness where VA

criteria do not otherwise warrant contrary findings. In all

instances any reasonable doubt should be resolved favorably

to support a finding of service connection. 38 C.F.R.

§ 3.302© (2008).

As this is an appellate review of an original claim, the

Board will review the underlying administrative decision

relied on by the RO as it is the basis for the current

denial. The decision is flawed in several respects. Most

importantly, it dismisses, without adequate explanation, the

determinations made by the Navy as to line of duty and

willful misconduct.

The original decision from 1947, and adopted by the most

recent denial in March 2005, simply says VA must make its own

determination as to mental unsoundness. Such a declaration

stands in violation of current law and regulation. VA is

bound by service department findings unless they are patently

inconsistent with the requirements of laws administered by

VA. The Veteran was not AWOL at the time of his death. He

was not confined under sentence of a court-martial, he was in

custody pending NJP at a captain's mast. Nor was the Veteran

confined for any civil court sentence. 38 C.F.R. § 3.1(m).

The 1947 decision speculated that pending disciplinary action

could have motivated the Veteran to commit suicide. As

stated this was speculation. Moreover, the Veteran was

pending NJP for a minor infraction. It is not reasonable to

conclude that such a minor level of punishment, for a minor

offense, would serve as motivation for suicide, even

considering the prior disciplinary actions. Further, the May

2006 SOC reasons and bases go beyond speculation by stating

as fact that the Veteran was facing a dishonorable discharge

at the time of his death. There is not a scintilla of

evidence in the record to support that conclusion. There is

no evidence of any type of record to show that any court-

martial proceeding was pending or even anticipated. The line

of duty/misconduct investigation clearly states that the

Veteran was pending NJP at the time of his death. There was

no mention of any pending dishonorable discharge that was

pending as a result of any prior disciplinary action. The

SOC conclusion of the Veteran facing a dishonorable discharge

at the time of his death is not supported by the evidence.

Upon review of all of the evidence of record the Board

concludes that the appellant has standing as a surviving

spouse.

The Board also concludes that the Veteran was

suffering from mental unsoundness at the time of his death.

There is no affirmative evidence of record to show

circumstances that would lead a rational person to commit

suicide. The Veteran's mental unsoundness was service-

connected as it occurred during his active military service.

There is no reasonable doubt to be resolved in this case.

The Veteran's mental unsoundness led directly to his

committing suicide.

For reasons previously discussed, the facts and circumstances

of the Veteran's death are not such as to be patently

inconsistent with the requirements of laws administered by

VA. Accordingly, the Veteran's death was in the line of duty

and not due to his willful misconduct. His death was, and

is, service-connected. The appellant's claim for entitlement

to service connection for the cause of the Veteran's death is

granted.

As provided for by the VCAA, VA has a duty to notify and

assist claimants in substantiating a claim for VA benefits.

38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002

& Supp. 2008); 38 C.F.R. § 3.159 (2008). In this case, the

Board is granting in full the benefit sought on appeal.

Accordingly, assuming, without deciding, that any error was

committed with respect to either the duty to notify or the

duty to assist, such error was harmless and will not be

further discussed.

ORDER

Entitlement to service connection for the cause of the

Veteran's death is granted.

____________________________________________

S. S. TOTH

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Berta]

Suicide is considered by VA to be willful misconduct unless the veteran was insane at time of the suicide.

Or the death could be rated "as if" service connected under Section 1151 due to a medication error or side affect that the spouse could prove caused suicidal ideation enough for the veteran to act on those thoughts.

I posted the regs here on Suicide before (maybe they are in DIC forum) and have had experience with claims for DIC under these conditions above.A good friend of mine who committed suicide 4 years ago (Vietnam Veteran)

had planned this carefully.He had done extensive volunteer work in the community for years,had no known mental health problems = per the wife although he told me he had PTSD-no medical records -per the wife-

and it would have been almost impossible for his suicide to have been declared an act of an unsound mind. The manner of death even showed clear intent over a sudden irrational act.

Anyone thinking that their spouse will get DIC if they commit suicide is projecting 'intent' and this would be considered willful misconduct by the VA if they found that out.

The VA has excellent information on the signs of suicidal ideation-inmportant for all of us to know:

http://www.mentalhealth.va.gov/suicide_prevention/

and also anyone who needs to talk to someone if they have these feelings should call the suicide hot line at 1-800-273-8255 begin_of_the_skype_highlighting              1-800-273-8255      end_of_the_skype_highlighting.

They have a staff who deals entirely with veteran;'s issues and their base is near where I live - at the Canandaigua VA.This Program has helped many many veterans and their family members.

I suggest that anyone who gets a call from anyone who is talking of harming themselves to urge them to call the Suicide hot line- or get their caller ID number and then call 911 and direct them to the caller.

Or try to contact the state police via the internet in their locale- while you are talking to them by phone.

Edited May 24, 2010 by Berta