Citation Nr: 1751315 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-07 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, 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 The Appellant ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1982, with service in the Republic of Vietnam. The Veteran died in January 2011; the Appellant in this case is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction now lies with the Waco, Texas RO. The Appellant testified before the undersigned Veterans Law Judge (VLJ) at an October 2016 videoconference hearing. A copy of the transcript is associated with the claims file. FINDINGS OF FACT 1. The Veteran died in January 2011. The Veteran's death certificate lists the cause of death as advanced hepatic encephalopathy; status post variceal banding hypernatremia is listed as a significant condition contributing to death, but not the underlying cause. 2. The evidence of record shows that, at the time of his death, the Veteran was service connected for bilateral hearing loss and calluses, both great toes, and corns, both fifth toes. 3. The probative evidence of record does not show that the listed cause of the Veteran's death was related to the Veteran's active service or to his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability, or if the Veteran was entitled to a 100 percent disability rating from VA continuously for five years from the date of discharge or for 10 years prior to his death. 38 U.S.C.A. §§ 1310, 1318 (West 2014). Death pension benefits are payable to the surviving spouse of a Veteran of a period of war who otherwise meets the eligibility requirements. 38 U.S.C.A. § 1541 (West 2014). The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.310 (secondary service connection), 3.312(c). Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). At the outset, the Board notes that, at the time of his death in January 2011, the Veteran was service connected for bilateral hearing loss and calluses, both great toes, and corns, both fifth toes. The Veteran's death certificate indicates that his cause of death was advanced hepatic encephalopathy. Status post variceal banding hypernatremia is listed as a significant condition contributing to death, but not the underlying cause. Review of the record indicates that the Veteran's service treatment records (STRs) prior to November 1980 were lost. See e.g., December 1982 Rating Decision. Nevertheless, available STRs are negative for signs, symptoms, findings, treatment, or diagnosis of a liver condition, to include advanced hepatic encephalopathy or status post variceal banding. Furthermore, a November 2010 progress record indicates that the Veteran was diagnosed with Hepatitis C in 2005, over 25 years after the Veteran's separation from service. Therefore, the Board finds that service connection for the Veteran's cause of death is not warranted on this basis. Alternatively, the Appellant contends that the Veteran's hypertension was a contributory cause of his death. However, the Board notes that the Veteran was not service connected for hypertension at the time of his death. The Appellant disagrees with this contention. See October 2016 Board Hearing Transcript. To support her claim that the Veteran was service connected for hypertension during his life, she submitted a photocopy from the Beneficiary Identification Records Locator Subsystem (BIRLS), which denotes that the Veteran was in receipt of service connection for hypertension at the time of his death. However, the Board finds that the BIRLS record is incorrect. The BIRLS record also shows that the Veteran was not service connected for hearing loss and growths of the skin; however, he was granted service connection for both disabilities in a December 1982 rating decision. While the Board cannot account for this discrepancy, the Board finds the information confirmed therein to be erroneous and not supporting of the Veteran's claim in light of the rating decisions of record. The claims file is also devoid of evidence showing hypertension in service or within one year of service, and there is no opinion of record linking hypertension to service. The Veteran's available STRs are negative for signs, symptoms, findings, treatment, or diagnosis of hypertension. In a January 1981 Report of Medical History, the Veteran checked a box indicating that he had high or low blood pressure. However, the Veteran's endorsement of high or low blood pressure on his medical history form, by itself, does not constitute a disease or disability being noted in service. See 38 C.F.R. § 3.304(b)(1), (3); Crowe, 7 Vet. App. at 238. Only those conditions that are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). As such, the earliest documentation of a diagnosis of hypertension in the record is in an October 2010 medical record, where it is listed as a chronic problem. While not dispositive, the lapse of time between separation from active service and the earliest documentation of a claimed disability is a factor that weighs against the Appellant's claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In making its determination, the Board has also considered a March 2011 statement from Dr. C.D., which indicates that the Veteran's hypertension "might have been" a contributory factor in ending the Veteran's life. However, the Board finds that the private physician failed to provide a rationale for this conclusion and, by interjecting "might have been" into the statement, she was not definitive in her conclusion. There are a line of precedent cases discussing the probative value of opinions that are equivocal. See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424 (1998). These cases make clear that, while an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is a definite etiology or obvious etiology, a doctor's opinion phrased in terms tantamount to "may" or "could" be related to service is an insufficient basis for an award of service connection because this is similar to finding the disorder in question "may or may not" be related to service. Obert v. Brown, 5 Vet. App. 30 (1993); see Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Furthermore, Dr. C.D. did not include a rationale for her opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, such opinion is afforded minimal probative weight. Finally, there is no medical evidence of record indicating any causal link whatsoever between the disorders indicated on the Veteran's death certificate and his two noted service-connected disorders. 38 C.F.R. § 3.310. In reaching a determination on this claim, the Board has considered the Appellant's lay opinion with regard to each of the noted theories of the claim. That said, as a lay person, she has not shown that she has specialized training sufficient to render an opinion as to the diagnosis or causation of any of the diseases specified above. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In particular, the question of a potential causal relationship between the Veteran's service-connected disabilities and the diseases listed on the death certificate is a complex one, requiring medical training and credentials. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly, the Appellant's statements in support of this appeal lack probative value. For each of the reasons described above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for the cause of the Veteran's death, and the Appellant's claim must be denied. See 38 U.S.C.A § 5107(b). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs