Citation Nr: 1339860 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-42 326 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of a veteran. 2. Whether new and material evidence has been received to reopen service connection for hepatitis C for accrued benefits purposes. 3. Entitlement to service connection for hepatitis C for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is the surviving spouse of a deceased veteran who had active service from February 1972 to March 1992. He died in December 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the RO in Indianapolis, Indiana. The appellant presented testimony at a hearing before RO personnel in February 2010. A transcript of the hearing is associated with the claims file. In reviewing this case the Board has not only reviewed the physical claims file, but also the electronic file on the "Virtual VA" system to insure a total review of the evidence. The appellant submitted additional evidence after the most recent supplemental statement of the case; however, the evidence consisted mostly of duplicate copies of records already considered by the RO. The only new evidence submitted was accompanied by a waiver of the appellant's right to initial consideration of that evidence by the RO. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) FINDINGS OF FACT 1. In an unappealed August 1995 rating decision, the RO denied service connection for hepatitis. 2. The evidence associated with the claims file subsequent to the RO's August 1995 rating decision relates to the unestablished facts of in-service injury or disease and nexus that are necessary to substantiate the claim; it is neither cumulative nor redundant of evidence already of record; and presuming its credibility for purposes of reopening, it raises a reasonable possibility of substantiating the claim. 3. At the time of the Veteran's death, service connection was in effect for irritable bowel syndrome, bilateral knee disabilities, sinusitis, a right finger disability, hypertension, and hemorrhoids, none of which caused or substantially and materially contributed to cause his death. 4. The cause of the Veteran's death was cirrhosis; hepatitis C substantially and materially contributed to cause the Veteran's death. 5. The Veteran did not receive a blood transfusion during service. 6. The Veteran's hepatitis C was caused by intravenous drug use prior to service and during service, which constitutes willful misconduct. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for hepatis for accrued benefits purposes are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2013). 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 1312, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.301, 3.303, 3.312 (2013). 3. The criteria for service connection for hepatitis C for accrued benefits purposes have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5121, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Application to Reopen In an August 1995 rating decision, the RO denied a claim of entitlement to service connection for hepatitis. The evidence demonstrated that hepatitis B had resolved. Initial diagnosis of hepatitis C was after service, and there was no evidence of incurrence of hepatitis C in service. Although the Veteran initiated an appeal of that decision, he did not perfect the appeal after the statement of the case was issued. Therefore, the August 1995 decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2013). However, VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The evidence added to the claims file after the August 1995 decision includes the Veteran's assertion that he received a blood transfusion following a motor vehicle accident in service. The evidence also included medical opinion evidence nominally relating hepatitis C to the asserted blood transfusion. For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court) held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. As there was essentially no evidence of an in-service injury or disease that might be related to hepatitis C at the time of the August 1995 rating decision, the subsequent evidence (presumed to be true for purposes of reopening) addressing these unestablished facts constitutes new and material evidence. The claim is therefore reopened. DIC claim The Veteran died in December 2007. The cause of death listed on the death certificate was cirrhosis. The appellant contends the Veteran had hepatitis C at the time of his death and that this materially contributed to the cause of death. She also contends that the Veteran incurred hepatitis C as a result of a blood transfusion following a motor vehicle accident in 1972, while the Veteran was in the service. The medical evidence supports the assertion that the cirrhosis that caused the Veteran's death was in turn caused, at least in part, by hepatitis C. Dr. S.J.C. in a November 2003 report noted that elevated liver enzymes are due to hepatis C and alcohol abuse. The same doctor noted in September 2005 that cirrhosis was secondary to hepatitis C and alcohol. An August 2005 report of Dr. D.L.B. includes his opinion that cirrhosis of the liver with portal hypertension is likely due to a combination of alcoholic liver disease and hepatitis C viral liver disease. A November 2009 letter from Dr. P.Y.K. includes the opinion that the hepatitis that led to the probable destruction of the liver was a combination of heavy alcohol use and hepatitis C, and they contributed equally. The Board finds that, although the Veteran was involved in a motor vehicle accident in August 1972, he did not receive a blood transfusion at that time or at any time during service. Service treatment records have been obtained and appear to be complete. The Veteran's dental records contain two entries from August 23, 1972. It was noted that the Veteran was involved in an auto accident. There was an exterior root fracture of tooth #13, which the accompanying chart identifies as a premolar on the left side of the upper jaw (maxilla). There is also noted unspecified involvement of teeth #7, #9, and #10. It was also noted that a retentive pin of tooth #12 (the adjacent premolar) had perforated the mesial wall of the root; however, that tooth was asymptomatic and was not specifically noted as having been affected by the accident. It does not appear that specific treatment for any of the affected teeth was provided during that visit. A September 20, 1972 note reveals that the Veteran was hit in the mouth while playing baseball and sustained lacerations to his mucus membranes on the left side of the upper lip. No treatment was indicated. On November 8, 1972, an incisal edge fracture of #9 was repaired with a pin. It was also noted that #10 was fractured too much to restore with a filling, and a root filling with post crown construction was recommended. Work to prepare and install the crown was completed over the next several months with placement on July 30, 1973. Tooth #9 was ultimately filled. In July 2004, the RO granted service connection for dental treatment purposes for teeth numbers 7, 9, 10, and 13. Although the Veteran's clinical records (non-dental) for 1972 appear to be complete, there are no entries concerning a motor vehicle accident. There is a notation that the Veteran's health record was reviewed on August 22, 1972, just prior to the dental entry. On October 5, 1972, he was given a liver function test. On October 6, 1972, the Veteran was treated for a painful right knee for 10 months. There is no reference to a blood transfusion or any notable non-dental injuries resulting from an automobile accident anywhere in the service records. The Veteran was given a comprehensive physical examination in January 1975, at which time all systems were clinically normal. While treatment for the Veteran's right knee pain was noted on that report (since February 1972), a motor vehicle accident was not noted, nor were any significant injuries noted. Also, subsequent periodic examinations make no reference to injuries resulting from the 1972 motor vehicle accident. The Veteran appears to have been diagnosed as having hepatitis A antibodies in a January 1988 blood test. The Veteran was diagnosed as having hepatitis C in 1994. As noted above, he sought service connection for hepatitis during his lifetime, and that claim was denied in August 1995. Notably, he did not assert any history of a blood transfusion in connection with that claim. The first reference to a blood transfusion comes in a February 2002 VA clinical note, which includes a recitation of the Veteran's medical history. The clinician reported "MVA in 1972, lacerations on face, may have received blood transfusion." A September 2004 private liver clinic report notes that the Veteran "has a history of intravenous drug abuse and blood transfusion in 1970's." He denied body piercings or tattoos. A February 2007 hepatitis clinic consultation notes that the Veteran was there for an initial evaluation for hepatitis C; he was diagnosed in 1988; and "blood transfusion while in service when in a car accident 1978." Thus, during the Veteran's lifetime, the references to an in-service blood transfusion each emanate from the Veteran in the context of his reports of medical history after his initial diagnosis of hepatitis C. The Board finds the evidence regarding a blood transfusion in service to be little more than speculation. Notably, the Veteran's initial reference in 2002 was that he "may have" received a transfusion. This terminology clearly expresses uncertainty and naturally includes the corollary that he may not have received a transfusion. Medical evidence which merely indicates that a particular event "may or may not" have occurred is too speculative to establish the asserted event. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In essence, an assertion that is not conclusively stated, but asserts only the possibility of occurrence, is not probative evidence, or evidence that tends to prove the question at hand. The February 2007 entry refers to a 1978 accident, a date which is at odds with the service records, showing dental treatment in August 1972 following a motor vehicle accident. This erroneous date recollection also undermines the reliability of the Veteran's account of the events in service. The Veteran is competent to relate events such as the date of an automobile accident and the treatment he received; however, he has provided two different dates for the same event and has expressed uncertainty as to whether there was a transfusion. Thus, it is not his competence that is in question. Rather, the Board finds his recent assertions to be unreliable. The service treatment records also offer persuasive evidence against the assertion that there was a blood transfusion in service. It would appear from the otherwise complete service treatment and dental records that the only treatment sought by the Veteran following the accident was for tooth problems, which do not appear to have been urgent, as treatment to repair the injuries was completed over a span of months. It does not require medical expertise to recognize that blood transfusions are not routine medical or dental procedures. It is a reasonable expectation even to laypersons that such an event would have been recorded in treatment records. Moreover, this is not a case where records are missing or incomplete. The clinical records for the period in question contain entries reflecting dental treatment for fractured teeth following a motor vehicle accident, as well as routine medical treatment prior to and following the date of the accident. Regarding the reference to an accident in 1978, while this may as easily have been a transcription error as a mistaken remembrance on the Veteran's part, it certainly does not add to the credibility of the assertion, first made 30 years after the event, that the Veteran received a blood transfusion for a facial laceration and fractured tooth -- a transfusion that is nowhere recorded in an otherwise complete medical record. The appellant testified that, although she did not have first-hand knowledge of a blood transfusion, the Veteran told her about the motor vehicle accident and reported that he was thrown through the windshield of the vehicle and required a blood transfusion. She also testified that she believed the RO had not obtained all of the Veteran's service records, as the May 2008 rating decision reflected that the Veteran's service began in January 1975. The Board notes that the reference to the Veteran's service dates on the May 2008 rating decision was incorrect, and was later corrected. Nevertheless, as already discussed, the complete service treatment records were obtained and they include treatment and dental records for the period during which the motor vehicle accident occurred. The service treatment records reflect that, although the Veteran was treated for dental injuries, he received no other treatment following the accident. Most significant, the Veteran himself never asserted that he was thrown threw the windshield. He noted only that he received facial lacerations. Being thrown threw the windshield of a vehicle is not an insignificant event. The routine nature of the treatment records and dental records during this period belies the appellant's assertion that the Veteran was thrown threw the windshield and required a blood transfusion. That chances this should occur and yet there be no mention of it in treatment reports contemporaneous to service are remote. Indeed, the dental records reflect that the Veteran was well enough to have injured himself playing basketball less than a month after the accident. The appellant also asserted in September 2013 written argument that the Veteran was involved in serious car accident and was taken to a nearby hospital. However, she did not identify the hospital, she had not previously in her testimony asserted that the Veteran was hospitalized, and most significant, the Veteran never asserted that he had been hospitalized following the accident. The appellant is competent to relate what the Veteran told her during his lifetime. However, the Board is cognizant of the self interest which any claimant has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in her own case, but the Board is not free to ignore her assertion as to any matter upon which she is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the appellant's competency is not at issue, the Board finds that the credibility of her testimony and written assertions is lacking. Simply put, the appellant does not profess to have first-hand knowledge of the events described; moreover, the contemporaneous medical records, including the examination report at separation from service, are more convincing than the appellant's recent testimony and assertions made in support of a claim for monetary benefits. In the absence of any reference to a transfusion or description of an injury that might conceivably require a blood transfusion, and particularly in light of the temporally remote and speculative nature of the initial reference to a blood transfusion, the Board finds that the evidence regarding an in-service blood transfusion is not in relative equipoise. Rather, a preponderance of the evidence is against the assertion that the Veteran received a blood transfusion in 1972 or at any time during his service. The medical opinion evidence of record relates two possible etiologies for the Veteran's hepatitis C. The asserted blood transfusion and the Veteran's acknowledged history of intravenous drug use, which the Veteran described as extending from the age of 16 until approximately 1975 (see February 2007 VA hepatitis clinic consultation). Thus, the Veteran has acknowledged using intravenous drugs prior to service and in the first few years of service. As noted above, the opinion evidence in this case is of two varieties, opinions which tend to relate hepatitis C to intravenous drug use, and opinions which tend to relate hepatitis C to the asserted blood transfusion. The Board has found that the in-service blood transfusion did not occur. While the Board may not reject a medical opinion simply on the basis that it is founded on medical history provided by the Veteran, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the Veteran (or appellant) that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Therefore, to the extent the opinion evidence relates hepatitis C to an in-service transfusion, this evidence carries no probative weight. The Board obtained an expert medical opinion in August 2013. The VA specialist provided the following discussion and opinion: Hepatitis C is largely subclinical until well established cirrhosis creates complications: Ascites, portal hypertensive bleeding, encephalopathy, and/or jaundice. The evolution of hepatitis C virus to clinical liver disease (where it becomes obvious) averages around two decades. Most hepatitis C evolves from contaminated blood within needles during intravenous (IV) drug abuse. It may evolve from transfusion of blood, prior to 1992, when blood donors were not uniformly tested for Hepatitis C Virus (HCV). The testing for HCV was nonexistent from blood prior to the late 1980's. Also, contaminated tattoo needles with blood may also cause hepatitis C. The Veteran also had evidence of prior exposure to hepatitis B from which he developed natural immunity. When tested positive to antibody for hepatitis C in 1988, the Veteran also tested positive to HBsAB and HBcAB, and negative to HBsAG. Hepatitis B is most often contracted from contaminating bloody needles with IV drug abuse, but can also result from multiple sexual partners, both heterosexual and homosexual, from a contaminated blood transfusion, and from contaminated needles with tattooing. In the Veteran, we have IV drug abuse with heroin beginning at age 16. This predates his military service (beginning in 1972). In 1968 he was 16 years of age. The source of his hepatitis C and hepatitis B most likely originated then, before military service. His hepatitis B and C were then subclinical and unrecognized. He cleared hepatitis B naturally, but the hepatitis C virus progressed in him. Risk factors for hepatitis C are IV drug abuse, which the Veteran began in 1968 at the age of 16 and continued, admittedly, until 1975. One contaminated needle event with hepatitis C virus and hepatitis B virus can cause these viral diseases, and it is most likely that he contracted these viruses before military service. Liver function tests may be mildly abnormal for an extended period of time, and SGOT was noted in the military health records to be elevated as early as October of 1972. Assay for hepatitis B did not occur until the early 1970s, and it is unlikely that a potential blood donor was tested for hepatitis B in 1972, when the patient alleges a blood transfusion. Most likely the Veteran's hepatitis C and hepatitis B existed prior to military service. Hepatitis B was naturally cured, and hepatitis C progressed, slowly and subclinically, during military service. By 2002, after his military service was completed in 1992, liver disease had become complicated with bleeding. Later, he began drinking excessively compounding his progression to end-stage liver disease, including all complications from cirrhosis, which, along with sepsis, caused his death. The presence of antibody to hepatitis C signifies that the patient most likely has or had hepatitis C. Twenty percent of hepatitis C may be acute and not go on to chronicity. If hepatitis C is naturally cured, antibody to hepatitis C remains positive. Today, we can assay for the virus in the blood, and if present, we conclude that the patient has an active infection. If there is no hepatitis C virus, the patient is naturally cured of his disease or the hepatitis C antibody was a false positive. Based on the events that followed with a liver biopsy, done in 1994 and compounding alcohol use with death from cirrhosis in 2007, the Veteran had Hepatitis C and alcohol as the cause of end-stage liver disease as a progression over time. The findings at liver biopsy in 1994, including acute changes and fibrosis, are consistent with Hepatitis C in evolution. Hepatitis C liver disease was undoubtedly present during military service. I see no evidence except for the remote possibility of contaminated blood transfused with virus as a cause for his hepatitis C. More likely than not, he would have contracted hepatitis C virus and B virus prior to military service. He had 4 years of drug abuse allegedly prior to military service to have contracted viral hepatitis. This in itself would have been ample time to contract viral hepatitis. In the line of his military duty, I see no evidence of needle stick exposure or blood contamination of open wounds. The specialist restated his opinion as to pre-service hepatitis C in several places. He found that the source of his hepatitis C and hepatitis B "most likely" originated before military service; he found that it is "most likely" that he contracted these viruses before military service; he found that "most likely" the Veteran's hepatitis C and hepatitis B existed prior to military service; and he found that "more likely than not," he would have contracted hepatitis C virus and B virus prior to military service. VA law provides that no compensation shall be paid if a disability is the result of a veteran's own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2013); see also VAOPGPREC 2-97. Thus, irrespective of whether the intravenous drug use occurred before service or during service, VA law prohibits the grant of service connection for hepatitis C where, as here, it has been medically related to drug abuse, which by its nature is deemed to constitute misconduct. 38 C.F.R. § 3.301. The appellant asserted that there could be other service-related causes for hepatitis C, including "possible usage of unsanitary dental instruments in 1972." However, this is manifest speculation. It carries no probative weight in comparison to the August 2013 VA specialist's opinion linking hepatitis C with intravenous drug use. The appellant also asserted that the Veteran could not have used drugs while in the service as drug testing was conducted in service and this would have been discovered. The Board professes no knowledge as to the extent of drug testing in the services during the Vietnam War, and the appellant has not identified the basis for this assertion that it was routinely conducted. The Board simply notes that the Veteran acknowledged that he used intravenous drugs until 1975. The Veteran had first-hand knowledge of his activities during this period, and the Board places greater weight on his account than on the appellant's speculative assertions. The representative argues the Veteran's drug abuse is an "inaccurate factual premise" that is outweighed by the appellant's assertions. It's hard to see how that could be the case, when the Veteran's drug use is based on his own statements during his lifetime, and the appellant did not know him at the time so she has no personal knowledge. As noted above, the Veteran denied any body piercings or tattoos. As found by the Board above, the asserted blood transfusion did not occur. At the time of the Veteran's death, service connection was in effect for irritable bowel syndrome, bilateral knee disabilities, sinusitis, a right finger disability, hypertension, and hemorrhoids, none of which are asserted to have caused or substantially and materially contributed to cause his death. The Board notes that, to some extent, the appellant has based her claim on her assertion that, although not diagnosed until 1994, the Veteran's hepatitis C was actually present during service. She submitted several letters and reports in support of this assertion. The appellant has submitted letters from Indiana University Medical Center dated in November 2009, August 2010, and July 2013, each of which asserts that it was likely that Hepatitis C was present for a number of years prior to 1994 when it was initially confirmed. The November 2009 letter finds it likely that hepatitis C was present in 1988 as it typically takes about 20 years to destroy the liver. Indeed, the VA specialist found that hepatitis C liver disease was undoubtedly present during military service. The Board notes that, the essential finding in the Board's determination is not when the hepatitis C began, but what caused the hepatitis C. Here, the Board has found that the Veteran's hepatitis C was based on drug use. It is a natural extension of this finding to accept that hepatitis C was likely present during service. However, the Board has found that the cause of the Veteran's hepatitis C was misconduct involving intravenous drug use. This finding precludes service connection for hepatitis C regardless of the time of onset. In sum, the medical evidence establishes the acknowledged pre-service and in-service intravenous drug use as the only potential cause that is based on an accurate factual premise. As service connection cannot be based on abuse of drugs or alcohol, the Board finds that service connection for the cause of the Veteran's death is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accrued Benefits Claim Accrued benefits are periodic monetary benefits authorized under law administered by VA to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a). A claim for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000(c). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2013). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. See 38 C.F.R. § 3.160(d); see also 38 C.F.R. §§ 20.1103, 20.1104 (2013). Here, the Board concludes that there was a pending claim for service connection for hepatitis C at the time of the Veteran's death, and the appellant filed her claim for service connection for accrued benefits purposes in December 2007; therefore, the claim was timely filed. For the reasons discussed in detail above, the Board finds that service connection for hepatitis C is not warranted. The Veteran's hepatitis C was caused by intravenous drug use, some of which predated service, and some of which occurred during the first few years of service. To the extent of the in-service intravenous drug use, this constitutes willful misconduct and is specifically prohibited as a basis for service connection. See 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97. As also discussed above, there was no other cause for the Veteran's hepatitis C, and to the extent it was caused by pre-service intravenous drug use, it was not aggravated by service, as willful misconduct cannot serve as a basis for service connection by aggravation of a preexisting disability. Accordingly, the Board finds that service connection for hepatitis C for accrued benefits purposes is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The appellant has not asserted that there was any notice deficiency regarding the Veterans Claims Assistance Act of 2000 (VCAA). She was provided a notice letter in January 2008. Although the January 2008 letter did not provide a statement of the conditions for which the Veteran was service connected at the time of his death, and did not provide an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, see Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished), there is no assertion that an already service-connected disability caused or contributed to cause the Veteran's death. The sole contention here is that the cause of death (cirrhosis) should be service connected. The January 2008 letter informed the appellant of the evidence necessary to establish the claim on this basis. Moreover, the appellant, through her assertions that the Veteran's hepatitis C was caused by an asserted blood transfusion in service, has demonstrated actual knowledge of the requirements for establishing service connection on this basis. The United States Court of Appeals for Veterans Claims has held that actual knowledge of the evidence needed to substantiate a claim is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Thus, to the extent of any deficiencies in the notice provided, such deficiencies are not prejudicial to the claim. When conducting a hearing, a VA hearing officer must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2013). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the appellant's assertions were discussed in detail. Moreover, as discussed above, the appellant has demonstrated actual knowledge of the evidence necessary to substantiate her claim and of the reasons for the RO's denial of the claim. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the written assertions of the Veteran and the appellant, as well as the appellant's personal hearing testimony. Pertinent to the appellant's claim for service connection for hepatitis C for accrued benefits purposes, entitlement to accrued benefits must be determined 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). Because there is no additional evidence which may be added to the file, no evidentiary development is necessary and no notice of such need have been provided to the appellant. Therefore, there is no assistance that VA could possibly provide to the appellant to substantiate the claim of entitlement to service connection for hepatitis C for accrued benefits purposes. The Board notes that the duty to obtain a medical opinion under 38 U.S.C.A. § 5103(d) is inapplicable to DIC claims because the provision specifically states it only applies for "disability compensation." See DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008). Nevertheless, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit further clarified DeLaRosa indicating that while § 5103(d) is inapplicable to DIC claims, the provision of § 5103(a) still requires VA to make "reasonable efforts" to provide assistance if requested, to include obtaining a medical opinion. VA is excused from this obligation when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103(a)(2). Here, the Board has obtained an expert medical opinion regarding the etiology of the Veteran's hepatitis C. This opinion is adequate as it was provided by a medical specialist based on a review of claims file. This review is demonstrated by the specialist's knowledge of and discussion of the pertinent evidence in rendering his opinion. The opinion is accompanied by a rationale and by reference to medical authority and generally accepted medical principles. ORDER The application to reopen service connection for hepatitis C for accrued benefits purposes is granted. Service connection for the cause of death of the Veteran is denied. Service connection for hepatitis C for accrued benefits purposes is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs