Citation Nr: 1002002 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 03-11 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to March 1973. Further, his DD Form 214 indicates over 10 months of "other service." He died in April 1995, and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the claim. The Appellant testified before the undersigned Veterans Law Judge in October 2004. A transcript of this hearing has been associated with the Veteran's VA claims folder. In April 2007, the Board remanded this case for additional evidentiary development, to include additional notice, obtaining pertinent private medical records, contacting specified private clinicians, obtaining records from the Social Security Administration (SSA), and obtaining additional clarification from a VA clinician who completed a February 2006 medical opinion in this case. A review of the record reflects that this development has been completed. Therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the instant case have been completed. 2. The Veteran died in April 1995. His death certificate lists his immediate cause of death as multiorgan failure syndrome, due to or as a consequence of sepsis syndrome and community acquired pneumonia. Other significant conditions contributing to death, but not resulting in the underlying cause, were chronic hepatitis C and cirrhosis. 3. During his lifetime, the Veteran had no established service-connected disabilities. Although he did submit claims of service connection for hepatitis C and cirrhosis, they were denied prior to his death. 4. Hepatitis C and cirrhosis were not present in service or until many years thereafter, and the preponderance of the evidence reflects these disabilities are due to in-service intravenous (IV) drug use. CONCLUSION OF LAW The Veteran's death was not caused by or substantially or materially contributed to by a disability incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 1312, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in January 2002 and April 2002, which is clearly prior to the May 2002 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in January 2005, May 2007, and January 2009 which was followed by readjudication of the appeal by Supplemental Statements of the Case dated in April 2006, July 2006, and April 2009. This development "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Taken together, the aforementioned VCAA letters informed the Appellant of what was necessary to substantiate her current appellate claim, what information and evidence she must submit, what information and evidence will be obtained by VA, and the need for the Appellant to advise VA of or to submit any evidence in her possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the May 2007 letter included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate her claim and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Appellant has had the opportunity to present evidence and argument in support of her claim, to include at the October 2004 Board hearing. Nothing indicates the Appellant has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, a competent medical opinion was promulgated by a VA clinician in February 2006 based upon review of the claims folder, with addendums in March 2006 and August 2009. As these opinions were based upon an accurate understanding of the Veteran's medical history based upon review of his VA claims folder, to include the circumstances of his death, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of these VA medical opinions, and the Appellant has not otherwise identified any prejudice therein. Accordingly, the Board finds that these opinions are adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c)(1). Service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran died in April 1995. His death certificate lists his immediate cause of death as multiorgan failure syndrome, due to or as a consequence of sepsis syndrome and community acquired pneumonia. Other significant conditions contributing to death, but not resulting in the underlying cause, were chronic hepatitis C and cirrhosis. At the time of his death, the Veteran was an inpatient at a private medical facility, St. Peter Hospital. A death summary shows final diagnoses, which included multiple organ failure due to sepsis, metabolic encephalopathy, extensive community acquired right lung pneumonia, and chronic liver disease (to include chronic active hepatitis C). In addition, other records reflect the Veteran was admitted via the emergency room three days before his death. During his lifetime, the Veteran had no established service- connected disabilities. Although he did submit claims of service connection for hepatitis C and cirrhosis, they were denied prior to his death. Moreover, for the reasons detailed below, the Board finds that the Veteran's hepatitis C and cirrhosis were not present in service or until many years thereafter, and the preponderance of the evidence reflects these disabilities are due to in-service IV drug use. The Appellant has contended, as did the Veteran during his lifetime, that his hepatitis C and cirrhosis were due to in- service Agent Orange exposure while on active duty in the Republic of Vietnam. The Board acknowledges that the record reflects the Veteran had service in Vietnam from March 1971 to June 1972. As such, he was presumptively exposed to herbicides therein. 38 U.S.C.A. § 1116. The term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. Despite the foregoing, the Board notes that neither hepatitis C nor cirrhosis nor any of the other conditions identified as the cause of the Veteran's death are presumptively associated with herbicide exposure under the pertinent regulatory provisions of 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996); 68 Fed. Reg. 27,630-27,641 (2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, in this case the preponderance of the competent medical and other evidence against such a grant of service connection. The Appellant testified at the October 2004 hearing that two different private physicians, Dr. A. S. and Dr. St. L., had essentially informed her that there was a relationship between the veteran's death and hepatitis C (which the appellant alleges was caused by the veteran's exposure to Agent Orange in Vietnam). However, records were requested from both physicians in accord with the Board's remand directives, and no such opinion(s) were part of these records. Rather, the only competent medical opinions to address this claim is that of the February 2006 VA medical opinion, and subsequent addendums in March 2006 and August 2009. In the February 2006 medical opinion, the VA clinician noted, in pertinent part, that the record reflects the Veteran had a year or a year and a half of IV drug use while in Vietnam; he had sexually transmitted diseases in 1970, a past history of alcohol abuse, and was first diagnosed with hepatitis in 1988. The VA clinician stated that the Veteran's risk factors included sexual exposure; IV drug abuse; and there as no evidence that he had tissue transplant, blood transfusions, or other injuries which would provide for contamination. Based upon the foregoing, the clinician opined that it was at least as likely as not that the Veteran's hepatitis C infection was caused by or a result of promiscuous sexual activity or IV drug use while in Vietnam. The clinician further stated that there was no evidence that Agent Orange in and of itself caused hepatic inflammation, and there was evidence in the Veteran's medical record that hemacrhomatosis was acquired as a result of his hepatitis C. In the March 2006 addendum, the VA clinician opined that the Veteran's exposure to airgun injection were not likely to have caused his hepatitis in the military. In the August 2009 addendum, the VA clinician essentially concluded that there was nothing in the additional data to change the February 2006 opinion that it was at least as likely as not that the Veteran's hepatitis C infection was caused by or a result of his promiscuous sexual activity or IV drug use from 1970 to 1971, while in the Republic of Vietnam. The Board further notes that the VA clinician's reference to promiscuous sexual activity, as indicated in the February 2006 opinion, appears to be based upon the fact that the Veteran was treated for a sexually transmitted disease during his military service. On his December 1972 Report of Medical History, completed in conjunction with his separation examination, the Veteran indicated that he had had VD - syphilis, gonorrhea, etc. However, the physician's comments section noted that while the Veteran had a "UDRL" in December that might be due to exposure to syphilis, but it was probably due to the Veteran's drug abuse history. There was also a finding of rule-out syphilis as part of these comments. Consequently, it appears these in-service findings can be attributed to IV drug use as well. The Board also notes the Veteran acknowledged his in-service IV drug use during his lifetime. Even though the Veteran's IV drug use occurred during active service, direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. Drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); see also 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98; Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). The Veteran's frequent IV drug use during his military service clearly constitutes drug abuse pursuant to 38 C.F.R. § 3.301(d), and consequently any injury or disease, including hepatitis C infection and cirrhosis, resulting from that drug abuse is not considered to have occurred in the line of duty. In short, the competent evidence on file addressing which of the potential sources of hepatitis C infection in the Veteran is also the most likely source indicates that the infection likely occurred as the result of the Veteran's IV drug abuse in service. As indicated previously, a disease resulting from the abuse of drugs in service may not be considered to have been incurred in the line of duty, thereby precluding entitlement to direct service connection, including for any resulting infections. In view of the foregoing, the Board must find that the evidence on file clearly shows that the Veteran's hepatitis C resulted from his abuse of an illicit substance in service. Therefore, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs