Citation Nr: 1326334 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 05-35 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) under 38 United States Code, Chapter 35. 3. Entitlement to service connection for hepatitis C, for accrued benefits purposes. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1969 to January 1971. The Veteran died in January 2004 and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeals. In June 2005, the appellant testified before a Decision Review Officer (DRO) at a hearing at the RO. A hearing transcript has been associated with the claims file. In January 2008, the appellant withdrew her request for a Board hearing. In April 2008 and in June 2011, the Board remanded the instant claims to the Appeals Management Center (AMC) for further development and adjudication. In March 2013, the Board sought an opinion as to the claim for service connection for the Veteran's cause of death from the Veterans Health Administration (VHA). Such an opinion was received by the Board in April 2013. The appellant and her representative were provided a copy of this opinion in April 2013 and permitted an additional 60-day period to provide additional evidence and/or argument. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claims on appeal have been accomplished. 2. As reflected on his death certificate, the immediate cause of the Veteran's death was sepsis, due to liver failure. 3. At the time of the Veteran's death, service connection was in effect for an undifferentiated somatoform disorder. 4. The preponderance of the evidence supports a finding that the Veteran suffered from hepatitis C as a result of his service. 5. The preponderance of the evidence supports a finding that a disability of service origin caused the Veteran's death. 6. To the extent that benefits based on service connection for cause of the Veteran's death are payable, the criteria establishing the appellant's basic eligibility to receive DEA benefits are met. 7. The appellant filed a claim for accrued benefits within a year of the Veteran's death. 8. Evidence in the claims file at the time of the Veteran's death did not indicate that hepatitis C had manifested in service, that cirrhosis of the liver manifested within the one year presumptive period or for many years thereafter, or that hepatitis C was related to service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). 2. The appellant is eligible for to receive DEA benefits under 38 United States Code, Chapter 35 as a matter of law. 38 U.S.C.A. §§ 1310, 3500, 3501, 3510, 3512, 5103A, 5103(a) (West 2002); 38 C.F.R. §§ 3.312, 3.807, 21.3020, 21.3021 (2012). 3. The criteria for entitlement to service connection for a hepatitis C, for accrued benefits purposes, have not been met. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5121, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.309, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). With regard to the claims for service connection for the cause of the Veteran's death as well as the claim of entitlement to DEA benefits, given the favorable disposition of these claims, the Board finds that all notification and development action needed to fairly adjudicate these claims have been accomplished, and no further discussion of the VCAA is necessary. With regard to the Veteran's claim for service connection for hepatitis C for accrued benefits purposes, the Board notes that VA received the appellant's application for accrued benefits in January 2004. As the Veteran's death occurred prior to October 10, 2008, this claim is controlled by the accrued benefit provisions of 38 U.S.C.A. § 5121, which provide that the outcome of an accrued benefits claim hinges on the application of the law to evidence which was in the file at the time of the Veteran's death. For claims filed after October 10, 2008, a revised 38 U.S.C.A. § 5121A authorizes substitution of a surviving spouse for purposes of processing to completion a deceased claimant's claim and allows development of evidence. See 76 Fed. Reg. 8666, 8669 (Feb. 15, 2011). This provision was not given retroactive effect and hence does not apply to the case at hand. Id. The Board must also clarify that, since the appellant filed her application for accrued benefits after November 27, 2002, this claim is controlled by the version of 38 C.F.R. § 3.1000 currently in effect rather than a more liberal version of 38 C.F.R. § 3.1000 which had been in effect prior to November 27, 2002. See generally Castellano vs. Shinseki, 25 Vet. App. 146, 152-53 (2011). As such, the outcome of the accrued benefits claim hinges on the application of the law to the evidence which was in the file at the time of the Veteran's death, which may include records which were under VA's control on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); Hyatt v. Shinseki, 566 F.3d 1364, 1371 (Fed. Cir. 2009). Here, the Veteran submitted a claim for service connection claim for hepatitis C in February 2002. There is no dispute that the appellant as the surviving spouse is an eligible person for accrued benefits. As such, there is no further duty to assist the appellant in the completion of her application. See 67 Fed. Reg. 9638 -01 (Mar. 4, 2002); 67 Fed. Reg. 65707-02 (Oct. 28, 2002). The only potential development which may be conducted by VA consists of ensuring that any records deemed to be in the constructive custody of VA have been associated with the claims file. The appellant has not alleged that there are outstanding records that were in the constructive custody of VA that have not been associated with the Veteran's claims file. Under the circumstances of this case as it applies to the claims for accrued benefits, "the record has been fully developed," and it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence she should submit to substantiate her claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. With respect to general due process considerations, the appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103. Accordingly, the Board will proceed to a decision on the merits as to the accrued benefit issue. II. Analysis A. Service Connection for Cause of Death and DEA To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The Veteran died in January 2004. His death certificate lists the immediate cause of death as sepsis due to liver failure. In addition, his From DD-214 lists his military occupational specialty (MOS) as a medical specialist. The record reflects that the Veteran was in receipt of compensation benefits for service-connected undifferentiated somatoform disorder and that he had a pending claim for service connection for hepatitis C pending at the time of his death. The appellant contends that the Veteran's liver failure occurred as a consequence of his hepatitis C and that the Veteran contracted hepatitis C during service, specifically, through exposure to blood as a medic. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be presumed for certain chronic diseases (to include cirrhosis of the liver) which are manifested to a compensable degree within a prescribed period after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic diseases shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology, alone (in lieu of a medical nexus opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Post-service clinical evidence establishes that the Veteran presented to VA with hepatitis C in September 2001. He subsequently underwent monitoring and treatment for hepatitis C at VA and through a private provider until the time of his death in January 2004. To substantiate the appellant's claim, the probative medical evidence of record must demonstrate that it is at least as likely as not that the Veteran's hepatitis C (1) either caused or contributed substantially or materially to cause the Veteran's death, and (2) had its onset in, or is otherwise medically related to, disease or injury incurred during the Veteran's active duty service. The Board notes that the record contains several etiological opinions which it must consider and weigh. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). However, when faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The first of these opinions is reflected in a report of a May 2003 VA examination. This examiner opined that she was unable to determine which of the Veteran's risk factors (which included intravenous drug use, promiscuous sexual activity with prostitutes and transmission via blood products) led to his hepatitis C. In a March 2010 addendum opinion, this examiner opined that the Veteran's hepatitis C risk factor was more likely related to his intravenous drug use and sexual contact and least likely related to his contact with blood, blood products and body fluids during service. However, no rationale was provided in support of this opinion. A medical opinion which only contains only data and conclusions, and is not supported by reasons or rationale, is accorded no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two-" a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). This March 2010 opinion is therefore being afforded little probative weight. The second of these opinions is reflected in a January 2012 report. The examiner noted that the Veteran had been exposed to blood and body fluids while working as a medic during service and that he had a history of intravenous drug use and promiscuous sexual activity. The examiner noted that the risk of contracting hepatitis C from such exposure to blood and body fluids was minor compared to intravenous drug use and that the cause of the Veteran's hepatitis C was most likely due to his intravenous drug abuse, which is one of the highest risk factors. However, no rationale was provided in support of this examiner's opinion. See Nieves-Rodriguez, supra. This January 2012 opinion is also being afforded little probative weight. The third of these opinions was reflected in an April 2013 VHA report. The examiner opined that there was at least a 50 percent probability that the Veteran's hepatitis C was causally related to the circumstances of his active service, including his duties as a medical specialist, as he had a documented history of treating injured soldiers, assisting with amputation and live births, and treating trauma victims as a medical specialist. In the examiner's experience, many medics--even most medics-- had evidence of being exposed to hepatitis C as a result of such activities as placing intravenous lines in the field. However, the examiner noted that this Veteran's case was complicated by the fact that he had a fairly long (10 year) history of injection drug use, which is also clearly a very likely way to have been exposed to hepatitis C, as most injection drug users have likely been exposed to hepatitis C more than 10 to 20 times. As such, it seemed likely that the Veteran was exposed to hepatitis C in his work as a medic and also exposed later in conjunction with his intravenous drug use but it was felt that several initial exposures lead to the chronic infection, so that would make hepatitis C causally related to his field exposures in the examiner's opinion. The examiner further noted that the Veteran's sexual activity was unlikely to have played a role in his contraction of hepatitis C. This opinion was accompanied by a clear, complete rationale and is being afforded great probative weight. See Nieves-Rodriguez, supra. On this record, the Board finds that April 2013 VHA opinion on this matter constitutes competent and probative evidence to establish a causal relationship between the Veteran's hepatitis C and his death. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Significantly, the April 2013 VHA opinion is not contradicted by any other probative medical evidence or opinion. The Board finds that, collectively, the above-described evidence constitutes competent, credible, and probative evidence on the question of whether there existed a relationship between the Veteran's hepatitis C and his military service. In particular, the Board accords significant probative weight to the VHA opinion, as it was based upon full consideration of the Veteran's documented medical history, and on lay assertions that were made by the Veteran during his lifetime, and was supported by clearly-stated rationale. This evidence that tends to support a finding that there existed a medical nexus between the Veteran's hepatitis C and his military service. Accordingly, in light of all the foregoing, the Board finds that it is at least as likely as not that the Veteran's hepatitis C (1) either caused or contributed substantially or materially to cause the Veteran's death, and (2) had its onset in, or was otherwise medically related to, in-service injury incurred during the Veteran's active duty service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. In addition, for the purposes of dependants educational assistance under 38 United States Code Chapter 35 (see 38 C.F.R. § 21.3020), the child, spouse or surviving spouse of a veteran will have basic eligibility if certain conditions are met, including, that a permanent total service-connected disability had been in existence at the date of the Veteran's death or that the veteran died as a result of a service-connected disability. 38 C.F.R. § 3.807(a). As the Board has determined that the Veteran died of a service-connected disability, the requirements for entitlement to DEA are met. Therefore, given the facts of this case, and resolving all reasonable doubt in the appellant's favor, the Board concludes that the criteria for service connection for the cause of the Veteran's death are met. Further, as service connection for the cause of the Veteran's death is awarded, the criteria for basic eligibility for DEA under Chapter 35, Title 38, United States Code, have been met. B. Accrued Benefits Accrued benefits are defined as periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years. 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a) (in effect on or after November 27, 2002). The Federal Circuit court has concluded that, "for a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). It was explained that "a consequence of the derivative nature of the surviving spouse's entitlement to a Veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application." Id. at 1300. Important for this decision, an accrued benefits claimant cannot, subsequent to the claimant's death, submit for consideration records or evidence not contained in the claims file at the time of death. Hyatt v. Shinseki, 566 F.3d 1364, 1371 (Fed. Cir. 2009). The current version of 38 C.F.R. § 3.1000 does not allow for consideration of additional classes of evidence which had not been of file but which could help to identify, corroborate or verify information from the death certificate. 67 Fed. Reg. 9638 -01 (Mar. 4, 2002); 67 Fed. Reg. 65707 -02 (Oct. 28, 2002). However, "evidence in the file at date of death" includes "evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death." 38 C.F.R. § 3.1000(d)(4). This is a narrow exception for evidence deemed constructively of file such as records located at VA regional offices, insurance centers, medical centers, outpatient clinics, veterans' centers, and the Records Management Center. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA records are deemed to be constructively in the possession of VA adjudicators and must be obtained). See generally Dunn v. West, 11 Vet. App. 462, 466-67 (1998). This may not include, however, VA records generated after the claimant's death. See, e.g., Castellano, 25 Vet. App. at 153. After a review of the evidence, the Board finds that the Veteran had a claim of entitlement to service connection for hepatitis C pending at the time of his death. A review of the record reveals that in February 2002, prior to his death, the Veteran filed a claim for service connection for hepatitis C. This claim was denied by the RO in a November 2002 rating decision. The Veteran had subsequently filed a timely notice of disagreement objecting to the denial of his claim for service connection for hepatitis C but a statement of the case had not yet been issued at the time of his death. Therefore, the claim for service connection for hepatitis C was pending at the time of the Veteran's death in January 2004. Moreover, although the Veteran's claim terminated with his death, the regulations set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased Veteran's claim for VA benefits by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121; see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits is separate from the claim for service connection filed by the Veteran prior to his death, the accrued benefits claim is derivative of the Veteran's claim and the appellant takes the Veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones, 146 F.3d 1296 (Fed. Cir. 1998). The appellant, the Veteran's widow, filed a claim for service connection for the Veteran's cause of death and accrued benefits in January 2004, well within one year of the Veteran's death. The accrued benefits claim is thus considered timely. See 38 C.F.R. § 3.1000(c). At the outset, the Board must stress that an adjudication of the appellant's claim for accrued benefits based on the claim for service connection for a hepatitis C must be constrained to the evidence of file, either actual or constructively in VA's possession, at the time of the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(d)(4). The evidence on file at the time of the Veteran's death included his service treatment records, VA treatment records dated through April 2003, private treatment records dated through July 2000 and various statements submitted by the Veteran and the appellant. Notably, while this clinical evidence did document the monitoring and treatment of the Veteran's hepatitis C, there was no competent medical evidence suggesting a nexus between the Veteran's hepatitis C and his service. The only evidence of such a relationship that was of record prior to the Veteran's death in January 2004 was limited to the assertions of the Veteran and appellant that his hepatitis C was caused by exposure to blood and bodily fluids during service. As discussed above, the first competent, probative evidence of such a nexus was received by VA in April 2013. While the Veteran and the appellant were competent to describe hepatitis C symptoms, they did not allege chronicity. The theory of service etiology is not shown to be derived from a physician opinion provided prior to the Veteran death, as there was no competent medical opinion of record which determined that the Veteran's hepatitis C was related to active service. Thus, as it pertained to the medical question of diagnosis and etiology of hepatitis C, the Board finds that none of the information provided by the Veteran and the appellant prior to the Veteran's death was derived from a source competent to address the medical issues at hand. In summary, the Board finds that the evidence on file at the time of the Veteran's death showed that the Veteran did not manifest hepatitis C upon his discharge from service, and did not show that he manifested hepatitis C after service which was related to an event during active service. In so holding, the Board acknowledges that subsequent April 2013 VHA opinion which determined that the Veteran's hepatitis C was related to his service. However, this opinion did not exist, and hence were not in the possession of VA, at the time of the Veteran's death, and cannot be deemed constructively of record. Thus, the evidence of file at the time of the Veteran's death did not demonstrate a nexus between his hepatitis C and service, to allow application of 38 C.F.R. § 3.303(b). Accordingly, in the absence of any competent evidence of a nexus between service and hepatitis C in the record at the time of the Veteran's death, service connection for this disability for accrued benefits purposes is not warranted. There is no doubt to be resolved and the claim for accrued benefits must be denied. ORDER Service connection for the cause of the Veteran's death is granted, subject to the legal authority governing the payment of VA compensation. Basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code is granted, subject to the legal authority governing the payment of VA compensation. Service connection for hepatitis C, for accrued benefits purposes, is denied. ____________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs