Citation Nr: 1502730 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 11-13 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C, for substitution as claimant and accrued benefits purposes. ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to June 1975. He died in December 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to service connection for hepatitis C. The Veteran perfected an appeal of the December 2009 decision prior to his death. Jurisdiction of the case currently lies with the RO and Insurance Center in Philadelphia, Pennsylvania. In August 2013, January 2014, and August 2014, the Board remanded the appeal for further evidentiary development, and the claim has been now returned to the Board for appellate consideration. In a January 2013 memorandum, the RO determined that the appellant applied for and was a proper substitute claimant with respect to the Veteran's pending appeal. Previously, the Board determined that the appellant has been substituted as the claimant with respect to the issue on appeal. See 38 U.S.C.A. § 5121A (West 2002 & Supp. 2014); 38 C.F.R. § 3.1000(a) (2014). If a claimant dies while a claim for any benefit under law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. Hence, the appellant's application for substitution as claimant also served as an application for accrued benefits. The appellant has taken no action to appoint a representative and, as such, she proceeds unrepresented in pursuing her claim and has not requested a hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's hepatitis C has not been shown to be at least as likely as not causally related to his active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C, for substitution as claimant and accrued benefits purposes, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.1000 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter that was sent to the Veteran during his lifetime in September 2009 satisfied the duty to notify provisions with respect to service connection, and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. In addition, the duty to assist the appellant has been satisfied in this case. The RO has obtained the Veteran's service and post-service VA and private treatment records, as well as his Social security records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's January 2014 remand, the RO requested in a February 2014 letter that the appellant identify any outstanding private treatment records, including those in connection with the Veteran's 1992 diagnosis of hepatitis C, and complete and submit VA Forms 21-4142 for release to VA of all records from VCU Health Systems, MCV Hospitals & Physicians, in Richmond, Virginia. However, the appellant did not respond. The duty to assist is not a one-way street. If an appellant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Further, in compliance with the Board's August 2013, January 2014, and August 2014 remands, a VA medical opinion was obtained in September 2013, April 2014, June 2014, and December 2014. The Board finds that the December 2014 VA medical opinion is adequate for VA purposes, as the examiner conducted a thorough review of the Veteran's claims file and provided a nexus opinion with respect to the relationship between the Veteran's hepatitis C and his military service, to include a rationale for the stated conclusion. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Under these circumstances, the Board finds that there has been substantial compliance with the directives of the Board's prior remands in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Substitution and Accrued Benefits When a Veteran has a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Although the appellant's claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). There is no basis for an accrued benefits claim, unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). The statute concerning accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provides that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). In this case, the Veteran died in December 2011 and thus such provisions are applicable. In addition, the Veteran had a claim for VA benefits pending on the date of his death that had not been finally adjudicated by VA and, thus, there is a claim which remains pending for which the appellant may act as a substitute claimant. Generally, claims for accrued benefits must be adjudicated based on evidence that was physically present or constructively present (such as VA treatment records) in the Veteran's claims folder when he died. See 38 U.S.C.A. § 5121(a) (West 2002); see also Hyatt v. Shinseki, 566 F.3d 1364 (2009); Ralston v. West, 13 Vet. App. 108, 113 (1999). Specifically, in a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death. There is an exception for outstanding service treatment records or VA records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); see Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). However, the Board also notes that in promulgating the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), Congress created a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who, as the Veteran in the instant case, dies on or after October 10, 2008. A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and claims regarding substitutions of claimants in the case of death of a claimant. U.S.C.A. §§ 5121, 5121A. When adjudicating the accrued benefits claims, only the evidence of record at the time of death may be considered as the basis for a determination on the merits of the claim, as noted. However, when a properly qualified substitute claimant continues the pending claim in the footsteps of the Veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of a claim. A substitute claimant may submit additional evidence in support of a claim. Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants. Thus, it is potentially to an appellants' benefit to have a claim adjudicated as a substitute claimant pursuant to the newly enacted 38 U.S.C.A. § 5121A. Here the appellant requested status as a substitute claimant and her request was accepted by VA; therefore, any additional evidence received in support of the claim subsequent to the time of the Veteran's death will be considered. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The appellant contends that the Veteran contracted hepatitis C from several inoculations with air guns in service. Specifically, in a November 2010 statement, the Veteran indicated that he received air gun inoculations while at Great Lakes, Illinois in 1972 to 1973. Service treatment records reflect that the Veteran received four interdermal injections in January 1973 at Great Lakes, Illinois. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for hepatitis C. Initially, the medical evidence shows that the Veteran had a history of chronic hepatitis C since 1992, as evidenced by VA and private treatment records. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The record shows that in 1992 the Veteran was initially diagnosed with hepatitis C and in December 2011 he died of hepatic cirrhosis with liver failure secondary to hepatitis C and status post liver transplant in January 2001. However, the medical evidence of record does not establish that the Veteran's hepatitis C was related to his active duty service. The Veteran's hepatitis C first manifested many years after service. Service treatment records dated from September 1972 to May 1975 are silent as to any treatment for, or diagnoses of, hepatitis C or any liver infection. The Board notes the over 17 year gap between separation from service and the initial diagnosis of the Veteran's hepatitis C in 1992. In this regard, in his August 2009 application, the Veteran indicated that his hepatitis C disability began in December 1992. Further, after reviewing the Veteran's claims file, a December 2014 VA examiner concluded that "it is less likely than not that the Veteran's active duty time period presented risk factors that related to , caused and/or aggravated his 1992 diagnosis of hepatitis C." In the alternative, the examiner provided an opinion that it is as least as likely as not that the Veteran's post-service use of cocaine stands as a major risk factor for the contraction of hepatitis C and led to his death from hepatic cirrhosis with liver failure. To that effect, in a November 2010 statement, the Veteran indicated that he had never been an alcoholic, had never abused alcohol, and had never used intravenous drugs or heroin. He further indicated that he had never had a blood transfusion prior to his liver transplant and never engaged in any lifestyle choices or activities likely to put him at risk of contracting hepatitis C. However, a September 2008 private treatment record notes that the Veteran had last used cocaine one month earlier; he resumed drinking alcohol in 2007; he denied intravenous drug use. Additionally, an August 2009 VA treatment report reflects that the Veteran stated he last used alcohol three months earlier; he denied taking any substances, but later confirmed that he experimented with marijuana and cocaine but said that he had not had any such substances since 2008. Here, the Board finds that the Veteran's statements made to his health care providers regarding history of drug use are more probative than his subsequent assertion denying drug use. See Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In support of the conclusion, the December 2014 examiner addressed the appellant's contentions and his potential in-service risk factors. First, the examiner opined that it is less likely than not the Veteran's hepatitis C virus (HCV) was incurred, caused by, related to, and/or aggravated by an airgun inoculation received while in service, because although it is possible in theory, there was insufficient medically-based clinical evidence to support this mechanism or etiology of exposure to HCV. The Board observes that this part of the opinion is consistent with the Veterans Benefits Administration (VBA) Fast Letter indicating that the large majority of HCV infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection of drug use, and although it is "biologically plausible," there is lack of any scientific evidence to document transmission of HCV with airgun injectors. See VBA Fast Letter 04-13 (June 29, 2004). The examiner then opined that it is less likely than not that the Veteran's HCV was incurred, caused by, related to, and/or aggravated by the Veteran's September 1974 gonorrhea event. In this regard, service treatment records reflect that the Veteran complained of penile discharge and burning on urination in September 1974 and the gram stain was positive for gonococcal organisms. The examiner explained that the "classic symptomatology related to an gonococcal sexually transmitted disease (STD) to include penile discharge, burning with urination and gram positive organisms confirms a bacterial infection" rather than a viral infection. The examiner stated that there was insufficient medically-based, clinical evidence to support the nature and/or etiology of HCV infection coinciding with the Veteran's in-service symptoms of gonococcal induced penile discharge and burning with urination. The examiner agreed with an April 2014 VA examiner's opinion that although hepatitis C is a sexually transmitted disease, there is no evidence that the Veteran had multiple sexual exposures or that he had sex with men, which are the types of sexual exposures that have been identified as a risk for transmission of hepatitis C. Finally, the examiner opined that the Veteran had a major risk factor for hepatitis C, name cocaine usage that was at least as likely as not contributory to his 1992 diagnosis of HVC. The examiner first noted that there was a 17 year gap following separation from service, during which the Veteran was presumed healthy, and the Veteran reported a history of cocaine usage. To the extent that the appellant claims that the Veteran's hepatitis C was related to his service, the Board finds that the etiology of the Veteran's hepatitis C is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis of hepatitis C, and/or the etiology thereof, cannot be made by the Veteran or the appellant as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses. As the Veteran or the appellant has not demonstrated that he or she has expertise in medical matters, he or she is not competent to render a medical etiology of hepatitis C in this case. As such, the Board finds that a preponderance of the evidence is against the claim for service connection for hepatitis C. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hepatitis C, for substitution as claimant and accrued benefits purposes, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs