Citation Nr: 1628640 Decision Date: 07/19/16 Archive Date: 07/28/16 DOCKET NO. 14-05 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to December 1972, to include service in Vietnam. He died in August 2002. The appellant claims as the Veteran's surviving spouse. In this regard, while the appellant was separated from the Veteran at the time of the Veteran's death, in February 2016 correspondence, the appellant wrote that she and the Veteran had a common law marriage in the state of Texas prior to his death and that they never legally divorced. Furthermore, the appellant was awarded death pension benefits in January 2011. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas which, in part, denied service connection for the cause of the Veteran's death. In November 2012, the appellant testified during an RO hearing before a Decision Review Officer (DRO). In May 2016, the appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of these proceedings are of record. FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died in August 2002 and the immediate cause of death was respiratory arrest with an underlying cause of end stage cirrhosis. 2. The evidence reflects that the Veteran's death was also caused by hepatitis B/C. 3. At the time of death, service connection was not in effect for any disability. 4. The preponderance of the evidence is against a finding that a disability of service origin caused or contributed to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice 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 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the 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 for service connection for the cause of the Veteran's death, section 5103(a) notice must 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA did not satisfy its duty to notify under the VCAA. Nevertheless, the lack of VCAA notice in the present case is harmless. In this regard, the United States Supreme Court held in Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error in question was harmful by at least providing an explanation as to how the error caused harm. See also 38 U.S.C.A. § 7261(b)(2). Thus, the Board must consider the specific facts of an appellant's case to determine whether she has actually been prejudiced by any notice error. The Court has provided guidance in making this determination. Specifically, in Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Court held that lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. The Court also observed that a finding that any error did not actually affect the outcome of a claim or compromise the "essential fairness of the adjudication" shows that the error in question was not prejudicial. Id. at 116. In this case, the appellant demonstrated actual knowledge of the elements necessary to satisfy her claim during the November 2012 RO hearing. The claim was subsequently readjudicated in a January 2014 statement of the case. Based upon the foregoing, the Board concludes that appellant received ample actual notice of what was required to substantiate her claim and was not prejudiced by any potential prejudicial Hupp notice defect. See Mayfield, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and associated with the claims file. While there are outstanding private treatment records from Park Plaza Hospital, such records were requested in December 2012 and a negative response was received in January 2013. Also, while the appellant argues that there are outstanding service treatment records from the Treasure Island Naval Hospital, attempts were made to obtain such records but such have been found to be unavailable as noted in a December 2013 memorandum. Furthermore, a medical opinion was obtained in this case in January 2014 which is adequate to decide the claim. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The appellant was also provided an opportunity to set forth her contentions during a November 2012 RO hearing before a DRO and a May 2016 Board hearing before the undersigned VLJ. In Bryant v. Shinseki, the Court held that 38 C.F.R.§ 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the Board finds that there has been compliance with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the Board hearing was legally sufficient. Here, during the hearings, the DRO and undersigned VLJ identified the issue on appeal and information was solicited regarding the circumstances of the Veteran's death and whether any treatment providers had related his death to service. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id.at 497. During the hearing, nothing gave rise to the possibility that any existing, pertinent evidence had been overlooked. Based upon the foregoing, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to legal requirements does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of a result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of her claim. II. Analysis The appellant contends that the Veteran contracted hepatitis B/C during his service, which, in turn, resulted in liver disease and caused his death. During both the November 2012 and May 2016 hearings, the appellant testified that the Veteran was actually diagnosed with hepatitis B/C during his service and was treated for this/these disorders along with other venereal diseases during his service. During the May 2016 hearing, the appellant noted that the Veteran's service treatment records show that he was treated for nauseousness on several occasions during service and that he was quarantined due to gonorrhea from July to October 1972. She testified that her medical research revealed that hepatitis can lie dormant in your body for 20 years and that hepatitis has a 30 year "shelf life." The appellant noted several hepatitis B/C risk factors during the Veteran's service that support her assertion that he developed hepatitis B/C during his service: (1) the Veteran served in the Philippines/Vietnam in the early 1970s where there was an epidemic of hepatitis, (2) the Veteran participated in risky sexual behaviors in service, and (3) part of the Veteran's duties included handling dead bodies. DIC or death benefits may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To grant service connection for the cause of the veteran's death, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. A service-connected disability is deemed to have caused death when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A service-connected disability is deemed to have been the contributory cause of death when it is shown that it contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime service. 38 U.S.C.A. §§ 1110, 1131. In general, service connection requires competent evidence showing (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a) For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") In addition, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, or in certain locations in Korea, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii), (iv) (2015); VA Adjudication Procedures Manual, M21-1, IV.ii.1.H.4.b. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases which are deemed to be associated with herbicide exposure do not include liver disease. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran's death certificate reflects that he died in August 2002 and the immediate cause of death was respiratory arrest with an underlying cause of end stage cirrhosis. The evidence reflects that the Veteran's death was also caused by hepatitis B/C. At the time of death, the Veteran was not service-connected for any disabilities. The Veteran's service treatment records show complaints of, and treatment for, an upper respiratory infection with nausea in December 1971 and January 1972. Service treatment records also show that the Veteran was treated for urethritis, acute, due to gonocoeus from July 1972 to November 1972 and was noted to be positive for syphilis in September 1972. The Veteran's service treatment records, including his December 1972 separation examination, are negative for a diagnosis or treatment of hepatitis B or C. A review of the claims file shows a history of hepatitis B/C as early as July/August 1995. Specifically, in a May 1996 "Income and Net Worth Statement" the Veteran reported that hepatitis B/C were confirmed at the VA Medical Center in Houston, Texas in July/August 1995. Also, VA treatment records show "hepatitis B surface antigen" as well as "hepatitis C antibody positive" when the Veteran was 44 years old (approximately 1996). Significantly, the Veteran submitted a claim for service connection for hepatitis B/C in October 1995 and, by rating decision dated in February 1996, the RO denied service connection for hepatitis B/C. The appellant submitted a claim for DIC in December 2010. In support of her claim, she submitted a June 2011 statement from Dr. D.H., a Board Certified Family Physician. Dr. D.H. wrote that he had reviewed the Veteran's medical records and that the Veteran had been diagnosed with hepatitis C at the time of his discharge. Dr. D.H. wrote that hepatitis C is an infectious disease and not caused by drinking alcohol. Dr. D.H. also wrote that the Veteran did not come into contact with hepatitis C prior to being inducted in service. As such, Dr. D.H. opined that it was more likely than not that the hepatitis C contributed to the development of the Veteran's liver disease. As indicated above, a VA medical opinion was obtained in January 2014. The examiner noted a history of diagnoses of hepatitis B (unknown date of onset), hepatitis C (onset in 1990s), and cirrhosis of the liver (onset in 2002). The examiner reviewed the claims file, including the Veteran's service treatment records dated July 1972 to November 1972 showing treatment for gonococcal urethritis and syphilis, and noted that these records did not document the diagnosis, treatment, or symptoms of hepatitis. The examiner noted that the first indication of hepatitis B/C was July/August 1995 and also noted that that the Veteran had a history of substance abuse beginning during his service with a post-service history of crack cocaine use and incarceration as early as November 1995 IVDA (intravenous drug abuse) as early as January 1996. The January 2014 VA examiner opined that the Veteran's hepatitis C and resultant cirrhosis were less likely than not incurred in or caused by gonococcal urethritis and/or syphilis. The rationale for this opinion was that the infectious organisms causing gonococcal urethritis and syphilis are unrelated to the hepatitis C virus and cannot cause hepatitis C. The examiner also wrote that the Veteran had multiple risk factors for the development of hepatitis C, including IVDU (intravenous drug use), crack cocaine use, multiple sexual partners, and incarceration. The examiner wrote that the strongest risk factor was the reported history of IVDU. While the Veteran's repeated treatment for sexually transmitted diseases is an indicator of unsafe sexual practices, review of credible medical sources indicated that the use of IV (intravenous) drugs remained the most common source for HCV (hepatitis C virus) infection. According to NIH (National Institutes of Health) data, IVDU has the highest odds ratio for development of hepatitis C (OR=49.6), while sex with an IV drug user (OR=6.3), incarceration for more than three days (OR=2.8), and being stuck or cut with a bloody object (OR=2.1) have much lower odds ratios. As such, the risk of hepatitis C injection is much higher than with other exposures. Since there was no indication that the Veteran had any IV drug use during service, the examiner wrote that it was less likely than not that the Veteran's hepatitis C and resultant cirrhosis were proximately due to the gonococcal urethritis or syphilis treated in service. Significantly, the examiner included medical treatise evidence regarding hepatitis C infections. The January 2014 VA examiner also opined that it was less likely than not that the Veteran had a diagnosis of hepatitis C at discharge. Significantly, the examiner wrote that the test to diagnose hepatitis C was not commercially available until 1992. The examiner further opined that the Veteran's alcohol and drug use led to his exposure and development of hepatitis C. Specifically, the examiner wrote that while alcohol use, itself, does not cause hepatitis C, excessive alcohol use leads to risky behaviors, such as drug use and unprotected sex, which increase a patient's risk for contracting the hepatitis C virus. Continued use of alcohol in a patient with hepatitis C put them at a higher risk for development of chronic hepatitis C conditions, including cirrhosis and its sequela. The examiner reiterated that the most likely risk factor for the Veteran's hepatitis C was his IVDU. In a December 2015 statement from the appellant's representative, it was noted that, according to April 13, 2000 VA testimony before the Subcommittee on Benefits Committee on Veterans' Affairs, U.S. House of Representatives, Gary A. Roselle, M.D., Program Director Infectious Diseases, Veterans Health Administration, Department of Veterans Affairs stated "One in 10 US Veterans are infected with HCV, a rate 5 times greater than the 1.8% infection rate of the general population." Of the total number of persons who were hepatitis C antibody positive, and reported an era of service, 62.7% were noted to be from the Vietnam era. The second most frequent group is listed as post-Vietnam, at 18.2%. The Board finds that service connection for the cause of the Veteran's death is not warranted. First, at the time of the Veteran's death, he was not service-connected for any disorder. Significantly, the RO denied service connection for hepatitis B/C and the Veteran did not appeal this decision. Second, although the Veteran's Agent Orange exposure is shown, the Veteran's fatal liver disease is not one of the diseases subject to presumptive service connection based on in-service herbicide exposure under 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Third, the most probative evidence of record demonstrates that the Veteran did not contract hepatitis B or hepatitis C during his service. While the June 2011 opinion from Dr. D.H. notes that the Veteran's hepatitis C was diagnosed in service, the January 2014 VA examiner found that there was, in fact, no diagnosis of hepatitis C. Significantly, the January 2014 VA examiner wrote that the infectious organisms causing gonococcal urethritis and syphilis, which are noted in the Veteran's service treatment records, are unrelated to the hepatitis C virus and cannot cause hepatitis C. The January 2014 VA examiner also wrote that the test to diagnose hepatitis C was not commercially available until 1992 and opined that the most likely cause of the Veteran's hepatitis C was his post-service intravenous drug use. When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Additionally, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet App 295, 304 (2008). In this case, as to the issue of whether the Veteran contracted hepatitis C in service, the Board finds that the January 2014 VA examination report is highly probative as it is definitive, based upon a complete review of the Veteran's entire claims file, and cites to medical principles and literature. The report is extremely detailed and provides a thorough discussion of the issue. When weighed against the June 2011 statement from Dr. D.H., the January 2014 medical opinion is simply more probative. With regard to the arguments from the Veteran's representative in December 2015 that Vietnam veterans are more likely to have hepatitis C than the general population, this may be true but does not provide a nexus between this Veteran's hepatitis C and his service. In adjudicating this claim, the Board must assess the appellant's competence and credibility with respect to her statement. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(a) (2) (2015) (noting that lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The appellant's lay contentions that the Veteran was diagnosed with hepatitis C in service are outweighed by the January 2014 VA examiner's determination that the test to diagnose hepatitis C was not commercially available until 1992. Furthermore, the service treatment records and post-service treatment records noting a history of incarcerations as well as crack cocaine/intravenous drug abuse, weigh against a finding that the Veteran developed hepatitis B/C in service. The appellant's lay contentions that the Veteran's hepatitis B/C and subsequent death are related to his service are not competent. Such determinations require specialized medical knowledge. As such, they are also outweighed by the January 2014 VA examiner's etiological opinions. In its determination, the Board has considered the applicability of the benefit of the doubt doctrine. While the Board is sympathetic the appellant's contentions, the preponderance of the evidence is against her claim for service connection for the cause of the Veteran's death. Consequently, benefit of the doubt doctrine does not apply to the instant appeal, and her claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, Gilbert, supra. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs