Citation Nr: 18144466 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-40 847 DATE: October 24, 2018 ORDER Recognition as the Veteran’s dependent child for the purposes of establishing entitlement to Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits is granted. REMANDED The issue of entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. The appellant is the legitimate daughter of the Veteran; she was born in August 1993 and turned age 18 in August 2011. 2. The Veteran died in November 2010. 3. During the course of this appeal the appellant was between the ages of 18 and 23 and pursuing a course of instruction. CONCLUSION OF LAW The criteria for entitlement to recognition as the Veteran’s dependent child for purposes of establishing entitlement to VA death benefits are met. 38 U.S.C. §§ 101(3), 103, 1304, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54, 3. 57(a)(1)(iii), 3.102, 3.205, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1976 to May 1980. He died in January 2010. The appellant is the Veteran’s daughter. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the VA Regional Office (RO) in Milwaukee, Wisconsin. The appellant acknowledges that she is over the age of eighteen, but asserts that she is eligible for recognition as a dependent child for the purposes of establishing entitlement to DIC benefits because at the time of filing her claim, and during the pendency of the appeal, she was pursuing a course of instruction at the University of Mississippi and Jackson State University. The RO denied her claim because she did not submit verification of her enrollment from the schools she was purportedly attending. VA death benefits may be payable to a child of a Veteran. 38 U.S.C. §§ 101 (14), 1313, 1542; 38 C.F.R. § 3.5. For VA purposes a “child” is defined as an unmarried person who is either: under the age of 18, or became permanently incapable of self-support before the age of 18, or between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution and who is a legitimate child, a legally adopted child or was an illegitimate child acknowledged by the father. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1); 3.356. As an initial matter, the appellant is the legitimate child of the Veteran. Her birth certificate demonstrates that the Veteran is her father, and a marriage certificate indicates that the appellant’s mother, as listed on her birth certificate, was married to the Veteran. In May 2012, the appellant submitted Form VA 21-674, Report of School Attendance, certifying that she was enrolled in school at the University of Mississippi from January 2012 to May 2012, and was then enrolled at Jackson State University from August 2012 with an expected graduation date of May 2016. The appellant completed all the requested information on the form and signed it, thereby certifying the information was true and accurate. The form did not indicate there was any requirement that the school(s) sign the form. As such, the Board concludes that the completed Report of School Attendance Form is sufficient to support that the appellant was indeed enrolled at an approved educational institution. As the appellant is the Veteran’s legitimate daughter, was pursuing a course of instruction at an approved educational institution, and was between the ages of 18 and 23 during the pendency of the claim, the criteria for recognition as a dependent child for the purposes of establishing entitlement to VA DIC benefits are met. REASONS FOR REMAND The appellant contends that the Veteran contracted hepatitis C from blood transfusions required to treat lacerations of his liver, incurred from an assault by police officers in San Francisco, California, while he was on active duty. The appellant claims that the Veteran’s hepatitis C condition caused or contributed to the liver cancer which ultimately caused the Veteran’s death. The appellant also takes issue with the fact that the Veteran’s medical records have not been reviewed by a VA examiner for the purposes of obtaining an opinion as to whether the Veteran’s Veteran’s hepatitis C is related to his service, and whether it caused or contributed to his liver cancer, and thereby his death. Both the October 2012, and April 2013 rating decisions denied the appellant’s claim because it was found the evidence does not show the Veteran’s death was related to military service. However, lay evidence is of record establishing that the Veteran was injured in San Francisco during his active duty, and that he did receive blood transfusions. Also, medical documentation is in file indicating that the Veteran’s diagnosed hepatitis C caused his liver cancer. There are multiple medical documents in which the Veteran has stated to doctors that while he was in the military he had blood transfusions as a result of being beaten by police in San Francisco. The Veteran’s wife has provided a statement expressing she was told the Veteran had to have blood transfusions, and that she had to sign a form to authorize the blood transfusions. In addition, court documents have been submitted to evidence that the beating, as described by the Veteran, actually occurred. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2); See also Jandreau v. Nicholson, 492 F.3d 1372 (2007). It is not required that assistance be provided to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A(a)(2). However, in this instance, the evidence of record is sufficient to make it plausible that the Veteran contracted hepatitis C from the blood transfusions, and the medical evidence indicates hepatitis C lead to the Veteran’s liver cancer. Therefore, a reasonable possibility does exist that referring the records to a VA examiner to opine on service connection of the Veteran’s hepatitis C, and whether the hepatitis C caused or contributed to the Veteran’s death could substantiate the appellant’s claim. As such, the duty to make reasonable efforts to assist is triggered, and the case should be referred for a VA examination. See 38 U.S.C. § 5103A(a)(1). The Board finds that further development of the record is necessary to meet VA’s duty to assist the appellant in developing evidence to substantiate her claim. See 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Schedule a VA examination of the claims file by a qualified examiner to determine whether the cause of the Veteran’s death was related to service. The clinician should review the claims file and provide the following opinions: (a.) Is it at least as likely as not (i.e., a probability of 50 percent or more) that the injuries the Veteran sustained in the beating were consistent with injuries which would have required treatment by blood transfusion? (b.) If you determine that it is at least as likely as not that the Veteran received a blood transfusion during service, is it at least as likely as not that the Veteran’s hepatitis C was caused by those blood transfusions? In answering this question, please consider the Veteran’s other risk factors for contracting hepatitis C. (c.) Is it at least as likely as not that the Veteran’s hepatitis C caused the development of liver cancer or caused the liver cancer to progress more quickly? (d.) If you determine that the Veteran’s hepatitis C is both unrelated to service and to liver cancer, is it at least as likely as not that his liver cancer is otherwise related to his service? The rationale for all opinions expressed should be set forth. Citation to relevant peer-reviewed medical literature, if referenced, would be of considerable assistance to the Board. If the clinician cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion could not be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). After completing the requested actions, and any additional actions deemed warranted, the RO should readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Temple, Associate Counsel