Citation Nr: 1101957 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 09-29 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from May 1953 to June 1976. He died on February [redacted], 2007. The appellant is his surviving spouse. These claims come before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died on February [redacted], 2007; the immediate cause of his death was metastatic cancer to the liver and bladder. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The Veteran's in-service hepatitis, most likely due to acute hepatitis C, contributed to the Veteran's chronic liver disease and eventual death from, in part, liver cancer. 4. The Veteran died as a result of a service-connected disability. CONCLUSIONS OF LAW 1. The Veteran's death was due to a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010). 2. The criteria for entitlement to burial benefits are met. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. §§ 3.1600, 3.1601 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO provided the appellant VCAA notice on her claim by letters dated April 2007 and June 2010. These letters reflect compliance with pertinent regulatory provisions and case law, noted above. Therein, the RO acknowledged the appellant's claim, notified her of the evidence needed to substantiate that claim, identified the type of evidence that would best do so, notified her of VA's duty to assist and indicated that it was developing her claim pursuant to that duty. The RO also provided the appellant all necessary information on effective dates. As well, it identified the evidence it had received in support of the appellant's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the appellant in obtaining all other outstanding evidence provided she identified the source(s) thereof. The RO also noted that, ultimately, it was the appellant's responsibility to ensure VA's receipt of all pertinent evidence. Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, the latter notice the RO provided the appellant was untimely and the RO did not cure this timing defect by later readjudicating the appellant's claim in a supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). However, this error is harmless given the favorable outcome in this case. B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2010). The RO made reasonable efforts to identify and obtain relevant records in support of the appellant's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the appellant identified as being pertinent to her claim, including service and post-service treatment records. The RO also obtained a medical opinion in support of the appellant's claim. II. Analysis A. Service Connection - Cause of Death The appellant claims entitlement to Dependency and Indemnity Compensation (DIC) benefits based on her status as a surviving spouse of a Veteran who died from a disease related to his active service. DIC benefits may be paid to a veteran's surviving spouse in certain instances, including when a veteran dies of a service- connected disability. 38 U.S.C.A. § 1310 (West 2002). A veteran's death will be considered as having been due to such a disability when the evidence establishes that the disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2010). The principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, one must consider whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As previously indicated, the Veteran had active service from May 1953 to June 1976, including in combat. He received multiple awards for this service, including a Purple Heart based on combat wounds. According to his service treatment records, in August 1970, he presented with fatigue, malaise, anorexia, nausea, jaundice and dark urine of two weeks duration. Liver function tests were abnormal with a bilirubin of 1.7 and a serum aminotransferase level (then called SGOT) of 188. A medical professional diagnosed hepatitis (type unspecified). According to another medical professional who conducted a reenlistment examination, by April 1973, the Veteran had no sequelae of hepatitis. From 1970 to 2006, no medical professional again diagnosed hepatitis and the Veteran fared well medically. Occasionally from 2000 to 2006, the Veteran had his blood tested and those tests revealed normal liver enzymes and bilirubin. In February 2007, the Veteran sought treatment for right-sided abdominal pain, excessive belching and bloating, night sweats, and a decrease in appetite. At the time, he reported a prior history of hypertension, hyperlipidemia and acute hepatitis (remote, in service). Blood tests revealed markedly elevated liver enzymes. A computer tomography scan revealed multiple masses in the liver with hepatomegaly. A liver biopsy revealed that the Veteran had liver and hepatocellular carcinoma. Special stain testing conducted to determine the lineage of the carcinoma favored a hepatocellular primary. Blood tests taken in association with this diagnosis revealed a positive hepatitis C antibody. Nine days after undergoing the liver biopsy, the Veteran died. According to his death certificate, the immediate cause of his death was metastatic cancer to the liver and bladder. At the time of his death, the Veteran was not service connected for any disability. The appellant asserts that the cancer from which the Veteran died developed gradually, secondary to the Veteran's in-service hepatitis and that, therefore, she should be granted service connection for the cause of his death. She has submitted medical literature and reports of testimony presented to Congress establishing that hepatitis C often leads to chronic liver disease, can also lead to liver cancer and is a slowly progressing disease that advances over a 10 to 40 year period often with normal liver enzyme results, sometimes silently with no signs or symptoms. According to written statements the appellant submitted during the course of this appeal, the type of hepatitis with which the Veteran was diagnosed in service is unknown. However, he had risk factors for developing hepatitis C at that time and, therefore, she believes the type of hepatitis with which he was diagnosed must have been hepatitis C (then characterized as non-A and non-B). She explains that, in June 1970, five to six weeks before being diagnosed with hepatitis and three to four weeks before experiencing symptoms thereof, the Veteran received a Purple Heart for combat wounds. She alleges that, as a result of those wounds, the treatment thereof, and the Veteran's other combat activities, including helping his fellow soldiers in combat situations, he might have been exposed to blood contaminated with hepatitis C. The appellant points out that symptoms of hepatitis C are similar to symptoms of hepatitis B, both flu-like, and if the Veteran had hepatitis B, rather than hepatitis C in service, the Veteran would have had hepatitis B antibodies, rather than hepatitis C antibodies on blood testing in February 2007. Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. VBA Training Letter 211A (01-02) (Apr. 17, 2001). The appellant has submitted medical articles and reports of testimony presented to Congress establishing that: (1) the highest rate of hepatitis C is found in Vietnam era veterans due, in part, to transfusions, blood exposure in combat, combat wounds or vaccine contamination; and (2) veterans have added risks related to exposure to infected blood in the battlefield or through blood transfusions received during combat casualty care. The appellant disputes the RO's suggestion that the Veteran was at risk for developing hepatocellular carcinoma due to cirrhosis from alcohol consumption (one pack of beer weekly, one or two beers daily). She points out that, although cirrhosis is a factor leading to such cancer, it is a consequence of chronic hepatitis C and might not develop into liver cancer. The appellant believes that it is just as likely that the in-service hepatitis led to the Veteran's cancer. Four medical professionals have discussed the cause of the Veteran's death and/or possible relationship between the Veteran's liver cancer and in-service hepatitis. In August 2007, a VA examiner/non-physician, reviewed the claims file and concluded that she could not resolve the issue of whether the two were related without resort to mere speculation. She based this conclusion on the following findings: (1) it is too difficult to determine whether the Veteran's in-service hepatitis was of C type; (2) although there was no test for hepatitis C when the Veteran was serving on active duty and no medical professional noted hepatitis A or B during that time, the symptoms the Veteran exhibited during service were more typical of infectious hepatitis A or B; (3) liver enzymes were normal prior to 2007; (4) the Veteran had no risk factors for hepatitis C virus and therefore was not tested prior to his cancer diagnosis; (5) the Veteran had cirrhosis on a computer tomography scan in February 2097 and revealed drinking a pack of beer weekly; and (6) cirrhosis often develops with chronic hepatitis C infection and is a major risk factor for developing hepatocellular carcinoma. In May 2007, Ramesh K. Shah, M.D., submitted a prescription indicating that the Veteran had been diagnosed with hepatocellular carcinoma in February 2007 and had underlying hepatitis C. He opined that the liver cancer was probably due to the underlying hepatitis C. In March 2010, a VA examiner/physician, concluded that he could not resolve the issue of whether the Veteran's in-service hepatitis contributed to the cause of his death without resort to mere speculation. He based this conclusion on the following findings: (1) it would be sheer speculation to label the Veteran's in-service hepatitis as type C in the absence of test results showing such type (not then available) and with documentation of non-specific symptoms and liver enzymes; (2) the Veteran did not have classic risk factors for hepatitis C; (3) from 2000 to 2006, the Veteran had normal liver enzymes and there was no episodic pattern of aminotransferase elevation; (4) there were various causes that contributed to the Veteran's terminal phase, including other types of carcinoma, with a possibility of a metastatic cancer to the liver with a primary site of the intestines or lungs (hepatocellular carcinoma favored, but not definitively established, as primary site); and (5) the Veteran had cirrhosis, which is also a risk factor for developing hepatocellular carcinoma, and a history of alcohol consumption, which can cause cirrhosis. The examiner explained that he could not conclude with certainty, and could not discard fully as a probability that the Veteran's initial episode of non-specific hepatitis in service was hepatitis C and that the Veteran was a chronic carrier for almost four decades before developing hepatocellular carcinoma, which led to his death. In October 2010, upon the Board's request, a private gastroenterologist reviewed the Veteran's claims file and concluded that, although he could not state definitively that the Veteran had acute hepatitis C in service, that was the most likely clinical scenario. He also concluded that the hepatitis C contributed to the Veteran's chronic liver disease and death. He based these conclusions on the following findings: (1) risk factors for hepatitis C infection include intravenous drug use, blood transfusions, high-risk sexual activities and body art/tattoos; (2) Vietnam veterans are at a significantly higher risk of such infection than the average population; (3) hepatitis A and B were unlikely based on serologic evidence; (4) hepatitis C is one of the most common causes of liver disease; (5) acute hepatitis C infections are most often asymptomatic, but account for approximately 20 percent of acute hepatitis cases in America; (6) over 80 percent of individuals exposed to hepatitis C progress to chronic disease, one third of which have normal liver tests; (7) one study with 10 to 20 years of follow-up with individuals with chronic hepatitis show progression to cirrhosis in 50 percent of the cases (other studies show lower rates); (8) hepatitis C accounts for one-third of all cases of hepatocellular carcinoma in America and this type of carcinoma always occurs in the setting of cirrhosis; (9) progression from initial infection of hepatitis C to cirrhosis to hepatocellular carcinoma takes 20 to 30 years; and (9) tests for detection of hepatitis C were not available until the early 1990s. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Court has held that a post-service reference to injuries sustained in service, without a review of service medical records, does not constitute competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). The Court has also held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record, see Miller v. West, 11 Vet. App. 345, 348 (1998), and that an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As well, the Court has held that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not constitute competent medical evidence merely because the transcriber is a health care professional, see LeShore v. Brown, 8 Vet. App. 406, 409 (1995), and that a medical professional is not competent to opine as to matters outside the scope of his expertise. Id (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Finally, the Court has held that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty, see Bloom v. West, 12 Vet. App. 185, 187 (1999), that a medical opinion is inadequate when unsupported by clinical evidence, see Black v. Brown, 5 Vet. App. 177, 180 (1995), and that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this case, the Board assigns the VA examiners' opinions the least evidentiary weight. The two opinions are inconclusive, in some respects conflict with medical literature the appellant submitted in support of this appeal and do not respond to the appellant's well-reasoned assertions. To the contrary, the private gastroenterologist's opinion which favors the claim is based on a review of the claims file, including the medical literature the appellant submitted, supported by rationale and phrased in a manner that allows the Board to understand the probability of a relationship between the Veteran's active service and death. Based primarily on this favorable opinion, which establishes that the Veteran's in-service hepatitis, most likely due to acute hepatitis C, contributed to the Veteran's chronic liver disease and eventual death from, in part, liver cancer, the Board concludes that the death was due to a service-connected disability. The evidence in this case supports the Veteran's claim. B. Burial Benefits A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. § 3.1600 (2010). If a veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. 38 C.F.R. § 3.1600(a). Having determined above that the Veteran died as a result of a service-connected disability, the Board concludes that the criteria for entitlement to burial benefits are met. ORDER Service connection for the cause of the Veteran's death is granted. Burial benefits are granted. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs