Citation Nr: 1414472 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 10-09 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary-Caitlin Ray, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 until May 1974 and August 1976 until March 1986. In August 2007, the Veteran passed away. The Appellant in this matter is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Appellant originally filed a claim for DIC in October 2007. The RO denied the claim in a May 2008 rating action. The Appellant filed a notice of disagreement (NOD) in March 2009, stating that she believed that her husband's cause of death should have been service-connected. The RO treated the NOD as a new claim for DIC and readjudicated the claim in a July 2009 rating decision. A statement of the case (SOC) was issued in January 2010, and the Appellant perfected her appeal in February 2010. To the extent the Appellant's representative argues that the claim should not be adjudicated as a claim to reopen, the Board agrees and finds that the May 2008 rating action is on appeal, as it did not become final. See Bond v Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that in determining whether a decision became final, VA is required to determine whether any evidence received from one year of the decision is new and material and prevented the decision from becoming final under 38 C.F.R. § 3.159(b)). Therefore, the claim is properly construed as an original action for DIC benefits. In her February 2010 substantive appeal, the Appellant requested a hearing before Veterans Law Judge in Washington, DC. In an August 2013 letter, the Board informed her that her hearing was scheduled for November 2013. In a September 2013 statement, the Appellant requested that the hearing be postponed to allow her more time to prepare. In January 2014, the Board wrote to the Appellant requesting clarification on whether she still wanted to appear before a Veterans Law Judge. The letter advised her that failure to respond within 30 days would result in the withdrawal of her hearing request. No response has been received; the hearing request is therefore considered withdrawn. FINDING OF FACT The evidence of record indicates that a disability of service origin did not cause or substantially contribute to the Veteran's death. CONCLUSION OF LAW The criteria for establishing entitlement to DIC benefits based on service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits as provided for by the Veterans Claims Assistance Act (VCAA) of 2000. 38 U.S.C.A. §§ 5103 , 5103A; 38 C.F.R. §§ 3.159 , 3.326(a). Proper notice from VA must inform the claimant and her representative, if any, of any information and any medical or lay 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 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. In the context of a claim for DIC benefits, VA generally must provide (1) a statement of the disabilities, if any, for which the Veteran was service-connected at the time of his death, (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected disability, and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disability that was not service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). When a specific assertion is raised in a DIC claim or the accompanying evidence relates to such, VA must provide notice of how to substantiate the assertion taking into account the submitted evidence. Id. Notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). However, there is no error in failing to provide such prior notice when it was not required at the time of the initial AOJ decision. A content complying notice and proper subsequent VA process instead must be provided in these cases. Pelegrini, 18 Vet. App. at 112 . Neither the Appellant nor her representative has alleged prejudice with respect to notice as is required. None is found by the Board. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009), overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, VA's duty to notify has been satisfied. The Appellant was notified by letter dated in March 2009 of the criteria for establishing DIC benefits based on a service-connected disability, the evidence required in this regard, as well as her and VA's respective duties for obtaining evidence. Though this notice did not predate the RO's initial adjudication of the claim in May 2008, the claim was readjudicated in July 2009. Therefore, there is no prejudice to the Appellant. Acknowledgement is given to the fact that the Appellant has not been provided with notice via letter of how VA determines disability ratings or of the disabilities for which the Veteran was service-connected at the time of his death. However, the appellant has not been prejudiced as a result. With respect to the notice defects as they pertain to Dingess/Hartman, as this decision is denying the Appellant's claim on appeal, the issues of ratings and effective dates assigned for awards of VA compensation are rendered moot. With respect to the elements mandated by Hupp, although no actual notice was provided with respect to these elements, the Board finds that no resulting prejudice to the Appellant because the record reflects that the Appellant had actual knowledge of the Veteran's service-connected disabilities at the time of his death, and the evidence required to substantiate her claim for service connection for the Veteran's cause of death. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Specifically, the Board notes that the Appellant's primary theory of service connection, as advanced in her written contentions, is that the Veteran's death as a result of Hepatitis C and liver cancer was related to constipation, hypertension and psychiatric problems the Veteran experienced in service. Knowing that she had to demonstrate such a relationship between the Veteran's non-service connected disabilities, his cause of death, and his service, she has submitted written statements attesting to her personal knowledge of the Veteran's life with his service-connected and non-service-connected disabilities and her impression of their impact on his overall health. In view of the foregoing action from the Appellant, the Board finds that she has demonstrated actual knowledge of the Veteran's service-connected disabilities at the time of his death and the kinds of evidence required to substantiate her claim for cause of death benefits, such that the defect in VCAA notice with respect to Hupp produces no prejudice. Thus, in light of the foregoing discussion, the Board concludes that VA's duty to notify in this case is satisfied. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records and providing a medical opinion when necessary. See 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159 (2013). The RO has obtained VA treatment records. Neither the Veteran nor her representative has identified any outstanding evidence that would be relevant to the appeal. The RO attempted to obtain service treatment records from 1972 until 1974, but the records were deemed unavailable. A formal finding of unavailability was issued in January 201, and the Appellant was notified. The RO also attempted to obtain VA treatment records from January 1976 until August 1976, but the records were deemed unavailable. A formal finding of unavailability was issued in June 2011, and the Appellant was notified. The Board concludes that a medical opinion is not necessary in this case because, as explained in further detail below, there is no objective clinical evidence showing that the medical conditions that caused the Veteran's death were manifested in service, within the presumptive period following separation from service, or that they were otherwise etiologically associated with the Veteran's service connected disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that VA's duty to assist has been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. II. Service Connection for Cause of Death The Appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The cause of the Veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use 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. 38 C.F.R. § 3.312(a) . For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a 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). Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cirrhosis of the liver, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101 , 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay 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 the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Appellant contends that the Veteran's cause of death was related to disorders that should have been service-connected. Specifically, she argues that the Veteran experienced hypertension, constipation, and bipolar disorder as a result of service, and that these disorders contributed to his cause of death. The Veteran's claims file shows that he died in August 2007 at age 55. His death certificate shows that the immediate cause of death was Hepatocellular cancer, with Hepatitis C named as a contributing condition. A review of the Veteran's claims file shows that service connection was established for a degenerative disc disease of the lumbar spine, residuals of the broken nose, and right ear hearing loss. The Veteran's service treatment records show normal findings on clinical evaluation of his abdomen and other body systems. A September 1983 examination report notes that the Veteran had high blood pressure that was under control at the time. A June 1978 record shows that the Veteran was treated for stomach pains and constipation. Post-service treatment records show no liver cancer or Hepatitis for decades following the Veteran's separation from active duty in March 1986. In August 2007, the Veteran began treatment for liver cancer and Hepatitis C. His liver cancer was characterized as Stage 4, and he was given a life expectancy of 6 months. An abdominal CT showed cirrhotic morphology of the liver. The Veteran's condition progressively worsened, and he succumbed to his cancer in August 2007. His death certificate established his primary cause of death as Hepatocellular cancer with contributory Hepatitis C. The Board finds that the lengthy time period since service without clinical evidence of diagnosis or treatment of the medical conditions that caused the Veteran's death is evidence that weighs heavily against finding that such medical conditions had their onset during his period of active duty. See Maxon v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000). In view of the foregoing factual discussion, the Board concludes that the Hepatocellular cancer and Hepatitis C did not have their onset during his period of active service, such that they could be service connected on a direct basis under 38 C.F.R. § 3.303. Furthermore, the Board finds that the liver cancer with cirrhosis was not present or otherwise manifest to a compensable degree within one year following the Veteran's discharge from service in March 1986, such that it could be service connected on a presumptive basis under 38 C.F.R. § 3.307, 3.309. Lastly, the absence of clinical evidence of liver cancer and Hepatitis C until 21 years had elapsed following the Veteran's separation from active duty weighs against linking these medical conditions with his period of service. Notwithstanding the aforementioned provisions related to presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d) (2013). A review of the Veteran's post-service medical records, however, shows no objective opinion or clinical evidence that attributes his fatal Hepatocellular cancer and Hepatitis C to his service, or links them to his service-connected disabilities (i.e., degenerative disc disease of the lumbar spine, residuals of a broken nose, and right ear hearing loss). At no time has any medical evidence advanced the objective opinion that the Veteran's fatal liver cancer and Hepatitis C were incurred during his period of active service or were otherwise secondary to, or aggravated by a chronic service-connected disability. Thus, the only evidence linking the Veteran's death by liver cancer and Hepatitis C to his service is the raw assertion of such a nexus by the Appellant, unsubstantiated by any competent or credible lay or medical evidence. The Board finds that the Appellant is not competent to relate the Veteran's service-connected disabilities to his cause of death or to diagnose and relate hypertension, constipation and bipolar disorder to service and the Veteran's cause of death. To the extent the Appellant relates the asserted G.I. symptoms or in-service constipation as a manifestation of Hepatitis C infection, there is no foundation for this bare assertion. The Appellant lacks the requisite medical training to have the expertise to make medical diagnoses or provide opinions on matters regarding medical causation and etiology, therefore her statements in this regard are not entitled to any probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994). While the Board is cognizant of the late Veteran's honorable service in defense of his country and is sympathetic to his widow's situation, her personal belief in the existence of a relationship between the cause of the Veteran's death and his military service, no matter how sincere, is not probative of a nexus to service if unsupported by objective medical evidence. See Voerth v. West, 13 Vet. App. 117, 119 (1999). To the extent that the Appellant asserts that the Veteran contracted Hepatitis C in service, the Board notes that there is no evidence as to how the Veteran contracted the disease. However, assuming Hepatitis C were contracted in service, the only viable method of contraction supported by the evidence is drug use. VA Fast Letter 04-13 identifies injection drug use as the principal mode of transmission of Hepatitis C. See VA Fast Letter 04-13, June 29, 2004. A December 1975 record shows that the Veteran was treated for heroin dependency between service periods and gave a history of marijuana, heroin, cocaine, speed, and mescaline use since age sixteen. His DD-214 indicates that he was discharged for abuse of illegal drugs in 1986. As a matter of law, service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran's own misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3) (2013). Based on the evidence of record, the Veteran's drug abuse appears to have been repeated and prolonged and therefore cannot be considered isolated and infrequent use. Because service connection for Hepatitis C on this basis is precluded by law, and because no viable alternative method of in-service contraction of the disease is indicated by the record, the Board finds that Hepatitis C was not contracted in service. In view of the foregoing discussion, the Board must deny the Appellant's claim of entitlement to service connection for the Veteran's cause of death, as the preponderance of the evidence weighs against her claim. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107 (b) (West 2002); 38 C.F.R. § 3.102 (2013); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the Veteran's cause of death is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs