Citation Nr: 1323345 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-22 919A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The deceased Veteran had active service from January 1968 to March 1968, and from July 1968 to November 1971. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board has reviewed the physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. Although the appellant indicated that she wanted a Travel Board hearing in August 2008, she later told a VA employee in September 2011 that she was no longer interested in a hearing and asked that VA continue to process the appeal. See September 2011 VA Form 119. Subsequently, on the March 2012 VA Form 646, it is noted that the appellant desired a Travel Board hearing; however, after being provided with notice of the Board hearing scheduled for March 2013, the appellant did not appear for the hearing or request its postponement. For these reasons, the Board finds that the appellant's request for a Board hearing has been withdrawn. 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. In October 2005, the Veteran died of cirrhosis of the liver. 2. At the time of the Veteran's death, service connection was in effect for coronary artery disease, status post myocardial infarction, associated with herbicide exposure (retroactively granted in January 2012, with a 30 percent disability rating effective December 1, 1995). 3. The Veteran served in the Republic of Vietnam from October 1969 to July 1970, and is presumed to have been exposed to herbicides during service. 4. The Veteran's service-connected coronary artery disease, status post myocardial infarction, did not cause or substantially or materially contribute to his death. 5. There was no complaint, finding, or treatment for liver problems during service or chronic symptoms of cirrhosis of the liver during service. 6. Symptoms of cirrhosis of the liver were not continuous since service and did not manifest to a compensable degree within one year of service separation. 7. The Veteran's liver problems first manifested many years after service separation and were not causally or etiologically related to service, to include presumed exposure to herbicide agents. 8. The Veteran's intravenous drug abuse is the only in-service risk factor for hepatitis C. 9. Cirrhosis of the liver is a sequela of hepatitis C. 10. The Veteran's intravenous drug abuse during service was willful misconduct. CONCLUSION OF LAW The cause of the Veteran's death was not incurred as a result of a service-connected disability or any incident of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5103, 5103A (West 2002 & 2012); 38 C.F.R. §§ 3.159, 3.301, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or a supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, notice was sent to the appellant in March 2008, which was after the initial denial of the claim, because she initially indicated on the December 2005 VA Form 21-534 that she was not claiming that the cause of the Veteran's death was due to service. However, in the March 2006 Notice of Disagreement, the appellant asserted that the Veteran died of a service-connected illness related to exposure to herbicide agents during his service in Vietnam. In consideration thereof, the RO sent a notice letter to the appellant in March 2008, which explained that VA needed evidence to show that there was a relationship between the cause of the Veteran's death (i.e., cirrhosis of the liver) and Agent Orange exposure. The RO also described the types of information and evidence that the appellant needed to provide in support of the claim, and explained what evidence VA was responsible for obtaining or would assist in obtaining on her behalf in support of the claim. The RO did not address the element of effective date as required by Dingess; however, the notice defect is harmless error because the claim is being denied for reasons explained below, and no effective date will be assigned. After issuance of the March 2008 notice letter, the RO readjudicated the claim; therefore, the defect regarding the timing of the notice was remedied. The Board notes that the March 2008 notice letter did not fully comply with the Hupp requirements; however, the notice error is not prejudicial in this case. In the March 2006 NOD, the appellant alleged that the Veteran's cirrhosis of the liver was an illness related to the exposure to herbicide agents (i.e., Agent Orange) during his period of service in the Republic of Vietnam. In the March 2008 notice letter, the RO explained that VA needed evidence of a relationship between the cause of the Veteran's death and herbicide exposure, and advised that the cause of certain disabilities was presumed for veterans who were exposed to certain herbicides by serving in Vietnam. On the October 2008 VA Form 9 and in several written statements submitted from June 2008 to April 2011, the appellant continued to argue that the Veteran's liver problems were the result of in-service herbicide exposure. Thus, the appellant has repeatedly expressed the contention that the Veteran's exposure to herbicide agents during service caused or substantially contributed to his death. The appellant has argued the contention both before and after receipt of the March 2008 notice letter. In consideration thereof, the Board finds that the RO provided the appellant with satisfactory notice of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected, and the appellant has demonstrated adequate understanding of the same. See Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant had demonstrated actual knowledge of the information and evidence necessary to establish the claim). The Board notes that the RO did not notify the appellant of the conditions for which the Veteran was service connected at the time of his death or provide an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition in the March 2008 notice letter. However, the Veteran was not service connected for any disability when he died. In January 2012 (i.e., years after the Veteran's death), the appellant was advised that the Veteran had been retroactively awarded service-connected compensation benefits for coronary artery disease, status post myocardial infarction. She has not since contended that the service-connected coronary artery disease caused or substantially contributed to the Veteran's death. Therefore, the notice error is harmless in this case. Regarding VA's duty to assist in claims development, the Federal Circuit has held that 38 U.S.C.A. § 5103A(a) applies to DIC claims. Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under such statutory authority, VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A (a)(1). However, VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process, and negative responses are of record. The appellant was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. Pertinent post-service treatment records adequately identified as relevant to the appeal have been obtained or otherwise submitted and are associated with the record. There are no pertinent treatment records found in the Virtual VA file. A Formal Finding on the Unavailability of VA treatment records from the Jesse Brown VA Medical Center was made in March 2010. The appellant was informed of the unavailability of the records and provided an explanation of the efforts VA made to obtain the records. The RO also asked the appellant to submit the records if she had them in her possession and informed the appellant that VA would decide the claim based on the evidence it had unless VA heard from her within ten days. The appellant did not respond to the letter. In consideration of the foregoing, the Board finds that the procedures outlined in 38 C.F.R. § 3.159(e) were followed. The Board notes that no medical opinion has been obtained in this case; however, no medical opinion is needed to meet the requirements of 38 U.S.C.A. § 5103A(a) (VA Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim). In this case, because there is no in-service injury, disease, or event, including legally recognizable risk factor, to which subsequent hepatitis C and/or cirrhosis of the liver could be related. Regarding the appellant's assertion that the Veteran's presumed exposure to herbicide agents during service caused or substantially contributed to his death, the Board notes that cirrhosis of the liver is not enumerated as a disease associated with herbicide exposure under 38 U.S.C.A. § 3.159(e), and the appellant has not provided competent medical evidence of a relationship between the Veteran's cirrhosis of the liver and presumed exposure to herbicide agents during service. The articles submitted by the appellant actually weigh against finding a nexus relationship between cirrhosis of the liver and presumed herbicide exposure, as explained below. Also, the Veteran's service treatment records are absent of any complaints, findings, or treatment for liver problems, and the Veteran's liver problems are shown to have first manifested many years after service. The Veteran's intravenous drug abuse has been identified as the risk factor for hepatitis C, and the Veteran's account of intravenous drug abuse during service constitutes willful misconduct; therefore, hepatitis C is not subject to service connection on such basis, and the intravenous drug abuse may not be considered as a fact that caused the later hepatitis C. 38 C.F.R. § 3.301. Any opinion relating the subsequent hepatitis C or cirrhosis to the intravenous drug abuse during service would be of no probative value, as the intravenous drug abuse is willful misconduct, so is not legally recognizable as an in-service injury, disease, or event. The appellant does not contend, and the evidence does not show, that the Veteran died due to the only service-connected disability of coronary artery disease. For these reasons, the Board finds that any medical opinion in this case that purported to relate the Veteran's hepatitis C, cirrhosis, or death to service would be speculative because it would necessarily be relating the disability or death to something that did not occur during service or to the only risk factor during service (intravenous drug usage) that is legally precluded from being recognized as an in-service injury or disease or event because it constituted willful misconduct. Therefore, such opinion could not substantiate the claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5103A(a). Neither the appellant nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required. In view of the foregoing, the Board will proceed with appellate review. Service Connection for the Cause of the Veteran's Death Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. 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). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5 (2012). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). The service connected disability will be considered as the principal (primary) cause of death when such disability, 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the Veteran died of cirrhosis of the liver in October 2005. The death certificate identifies no other causes or significant contributory conditions for the Veteran's death. At the time of the Veteran's death, service connection was not in effect for any disability; however, in January 2012, the Veteran was retroactively awarded service connection for coronary artery disease, status post myocardial infarction, associated with herbicide exposure effective December 1, 1995. The appellant alleges that the Veteran's exposure to herbicide agents during active service caused liver problems and, ultimately, the Veteran's death. See, e.g., August 2008 VA Form 9. She asserts that the Veteran's health deteriorated after returning from Vietnam, and that he later developed liver problems. She further asserts that cirrhosis of the liver (i.e., the cause of the Veteran's death) was due to in-service exposure to herbicide agents. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the appellant must show the following: (1) that the Veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). After reviewing the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran's presumed exposure to herbicide agents caused or contributed substantially or materially to the development of cirrhosis of the liver, the cause of his death. Initially, the Board notes that the Veteran has qualifying Vietnam service and is, therefore, presumed to have been exposed to herbicide agents during active service. Thus, exposure to herbicide agents during service is not in dispute in this case. Nonetheless, the Veteran is not shown to have died due to any disability subject to presumptive service connection based on herbicide exposure, to include the recently service-connected coronary artery disease. As stated above, the only cause of death identified on the death certificate is cirrhosis of the liver. Cirrhosis of the liver is not enumerated as a disease associated with herbicide exposure under 38 U.S.C.A. § 3.309(e), and the appellant has not presented any competent medical evidence of a relationship between presumed herbicide exposure during service and cirrhosis of the liver. The rating schedule identifies cirrhosis of the liver as a sequela of hepatitis C. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (1). In this case, post-service treatment records show that the Veteran was being treated for hepatitis C through VA in 2004 and 2005 (i.e., in the months leading to the Veteran's death). Hepatitis C is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), and the appellant has not presented competent medical evidence of a relationship between the diagnosis and presumed herbicide exposure during service. The appellant submitted a portion of a news article with the VA Form 9 discussing Vietnam Veterans and exposure to herbicide agents and highlighted the portion of a news article noting that many veterans exposed to Agent Orange during the Vietnam War blamed such exposure for later health problems; however, the article then notes that the controversy ended in 1993 when Congress authorized benefits for those with seven specific ailments linked to Agent Orange exposure. As stated above, cirrhosis of the liver is not a disease that has been linked to herbicide exposure and is not subject to presumptive service connection as a disease associated with herbicide exposure. The news article does not show that there is any medical or scientific support for finding that there is a nexus relationship between the diagnosis of cirrhosis of the liver or hepatitis C and presumed exposure to herbicide agents during service. A portion of another news article submitted by the appellant, which discusses the link between deaths and Agent Orange, notes that an Air Force study named Project Ranch Hand found that servicemen who sprayed the defoliant, Agent Orange, from airplanes in Vietnam were not dying at a higher rate than soldiers who were not exposed to the herbicide and, in fact, had lower mortality rates than their counterparts in the general population. The article notes that preliminary findings proved that exposure to Agent Orange did not cause death within a short time period. The article further reveals that veterans contended that the defoliant had caused numerous health problems, including liver troubles; however, VA had countered that there was no scientific proof that Agent Orange caused such ailments. The Board notes that the findings of the Project Ranch Hand study, as discussed in the news article submitted by the appellant, do not indicate a nexus relationship between the Veteran's cirrhosis of the liver or hepatitis C and presumed in-service herbicide exposure and, in fact, provide evidence against such a finding. A third news article submitted by the appellant discusses the fact that former President Clinton expanded benefits for Vietnam veterans by including two additional illnesses (i.e., prostate cancer and peripheral neuropathy), based on a study by the National Academy of Sciences (NAS). The appellant highlighted the portion of the article that read that former Secretary of Veterans Affairs, Jesse Brown, had stated that Vietnam veterans did not have to provide evidence to show that they were exposed to Agent Orange because VA assumed that they were exposed if they served in Vietnam. As stated above, the Veteran's exposure to herbicide exposure during service is not in dispute. Rather, the question at issue is whether the Veteran's cirrhosis of the liver was caused by presumed herbicide exposure during service. The appellant has not presented any evidence of a nexus relationship between the Veteran's cirrhosis of the liver or hepatitis C and presumed in-service herbicide exposure, and none is otherwise shown. The news article discusses the recognition by VA of two additional disabilities as conditions subject to presumptive service connection due to herbicide exposure based on a scientific study conducted by NAS; however, neither of the disabilities identified in the article is cirrhosis of the liver or hepatitis C, and neither diagnosis has been added to the list of disabilities associated with herbicide exposure. Thus, although the appellant has asserted that the cause of the Veteran's death, cirrhosis of the liver, developed as the result of presumed in-service herbicide exposure, the diagnosis of cirrhosis of the liver is not included among the diseases associated with herbicide exposure and is not subject to presumptive service connection under 38 C.F.R. § 3.309(e). The Board also notes that hepatitis C, which was first shown in treatment records dated in 2004, also is not among the diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). The news articles provided by the appellant during the course of the appeal provide no support for finding that there is a nexus relationship between cirrhosis of the liver or hepatitis C and the Veteran's presumed exposure to herbicide agents. In fact, collectively, the news articles provide evidence against such a finding because they do not show that cirrhosis of the liver or hepatitis C has been identified by a medical or scientific study as a disease associated with herbicide exposure. Therefore, a preponderance of the evidence is against finding that presumptive service connection for cirrhosis of the liver based on the Veteran's presumed in-service herbicide exposure is warranted. Nonetheless, the unavailability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct incurrence in service or, in this particular case, based on chronic symptoms in service, a continuity of symptoms since service, or manifestation of a chronic disease to a compensable degree within the first post-service year. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The cause of the Veteran's death, cirrhosis of the liver, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After review of the lay and medical evidence of record, the Board finds that the evidence weighs against finding that the Veteran's cirrhosis of the liver had its onset during service, manifested to a compensable degree within a year of service separation, or is otherwise causally or etiologically related to the period of active service, including due to chronic symptoms in service. The Veteran's service treatment records are absent of any complaints, findings, or treatment for liver problems, and the Veteran's abdomen and viscera were clinically evaluated as normal at the November 1971 service separation examination. On the November 1971 service separation report of medical history, the Veteran checked "No" when asked if he then had or had ever had "stomach, liver, or intestinal trouble." Five days after the November 1971 service separation examination, on the Statement of Medical Condition, the Veteran affirmed that there had been no change in his medical condition since the service separation examination. Thus, the medical and lay evidence contemporaneous to service does not show that cirrhosis of the liver, or chronic symptoms related to the diagnosis, manifested during service. Because the service medical evidence was generated contemporaneous to service and is likely to reflect accurately the Veteran's physical state during that time, the evidence is of great probative value and weighs against finding that the Veteran had chronic symptoms of a liver disorder during service. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Board next finds that the weight of the evidence demonstrates that symptoms of cirrhosis of the liver and/or its symptoms have not been continuous since separation from service in November 1971. The earliest evidence of liver problems is dated in 1982, approximately 11 years after service separation. See August 1982 VA hospital discharge summary (where a hepatitis screen revealed a positive hepatitis B surface antibody and a positive hepatitis B Cor antibody). While the claims file includes earlier treatment records, they contain no reference to a liver disorder. Cirrhosis of the liver is not shown until 2005, approximately 44 years after service separation. This evidence weighs against finding that a continuity of symptoms of cirrhosis of the liver has manifested since service or that cirrhosis of the liver manifested to a compensable degree within one year of service separation; therefore, presumptive service connection for a chronic disease (i.e., cirrhosis of the liver) is not warranted. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board further finds that the weight of the evidence is against finding a relationship between cirrhosis of the liver and service. As stated above, the Veteran was being treated for hepatitis C in the months prior to his death from cirrhosis of the liver, which is a sequela of hepatitis C. 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. See VBA Training Letter 211A (01-02), dated April 17, 2001. The Board notes that, when the Veteran was evaluated for hepatitis C in April 2004, the only hepatitis C risk factor he reported was past intravenous drug abuse (IVDA). See April 2004 VA gastroenterology progress note. During his lifetime, the Veteran repeatedly told treating medical providers that he began abusing intravenous drugs (i.e., heroine) during service and continued to abuse intravenous drugs for several years after service. See, e.g., July 1975 VA hospital summary (noting the Veteran's report that he began using injectable heroin in 1969 and, since then, used continuously four to five times per day). The Board notes that the progressive and frequent use of drugs to the point of addiction, such as in this case, is considered willful misconduct. Therefore, to the extent that the evidence shows that the Veteran's abuse of intravenous drugs during service caused him to develop or contributed to the development of hepatitis C that later led to cirrhosis of the liver, the Board finds that service connection for the cause of the Veteran's death on such basis is not warranted. Disability compensation is not warranted for the disabilities of hepatitis C and cirrhosis of the liver that resulted from willful misconduct (i.e., the abuse of intravenous drugs). 38 C.F.R. § 3.301. The Board further notes that no other hepatitis C risk factors are shown to be related to service. For example, an October 1986 VA treatment record includes a positive history for tattoos, which are a risk factor for hepatitis C; however, the service treatment records do not show that the Veteran had any tattoos during active service or that any tattoos were present at service separation. The appellant has not alleged, and the Veteran is not otherwise shown to have had, any of the hepatitis C risk factors during active service other than intravenous drug abuse. Finally, the Board finds that the weight of the evidence is against finding that the Veteran's service-connected coronary artery disease caused or substantially or materially contributed to the Veteran's death. The appellant has not alleged and the evidence does not otherwise show that coronary artery disease status post myocardial infarction caused or contributed to the development of liver problems, to include hepatitis C or cirrhosis of the liver. Although the appellant has asserted that the Veteran's presumed in-service herbicide exposure caused him to develop liver problems, to include cirrhosis of the liver (i.e., the cause of his death), she is a lay person and lacks the requisite medical training, expertise, and credentials to provide a competent medical opinion regarding the relationship between the Veteran's liver disorder, which first manifested many years after service, and presumed herbicide exposure during service. The etiology of the Veteran's liver disability is a complex medical etiological question dealing with the origin and progression of the digestive system, and cirrhosis of the liver and hepatitis C are disorders diagnosed primarily on clinical findings and physiological testing. Thus, while the appellant is competent to relate symptoms of the Veteran's liver disability for which she had first-hand knowledge, she is not competent to opine on whether there is a link between his cirrhosis of the liver and/or hepatitis C and active service, including the asserted exposure to herbicide agents/chemicals, because such diagnosis requires specific medical knowledge and training. The appellant has not asserted that the Veteran had liver problems during service, had a continuity of symptoms of a liver disorder from service to his death, or that cirrhosis of the liver manifested to a compensable degree in the first post-service year. The evidence of record weighs also against such a finding, as explained above. Consequently, the appellant's lay opinion relating the cause of the Veteran's death to active service is afforded no probative value. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for the cause of the Veteran's death and, consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs