Citation Nr: 18147640 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-33 742 DATE: November 5, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death, for purposes of entitlement to dependency and indemnity compensation is granted. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s hepatitis C, which caused his end-stage liver failure, was incurred during active service. 2. The Veteran was not owed any money at the time of his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.312. 2. The criteria for a grant of accrued benefits have not been met. 38 U.S.C. § 5107, 5121; 38 C.F.R. §§ 3.31, 3.102, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to March 1971. The Veteran died in February 2011. The appellant is the Veteran’s surviving spouse, who has been found to be a valid substitute on the Veteran’s service-connection claim which was pending at the time of his death. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision and decision letter issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. Jurisdiction over the appeal presently rests with the Regional Office (RO) in St. Louis, Missouri. In September 2016 the appellant submitted a written statement withdrawing her request for a hearing before the Board. 1. Entitlement to service connection for the cause of the Veteran's death, for purposes of entitlement to dependency and indemnity compensation The Veteran died in February 2011. His cause of death was given as end-stage liver disease. The appellant seeks service connection for the Veteran’s cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits. Pursuant to 38 U.S.C.A § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C.A § 1310 (West 2014); Dyment v. West, 13 Vet. App. 141 (1999), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran’s death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The disability is the principal cause of death if it was “the immediate or underlying cause of death or was etiologically related thereto.” 38 C.F.R. § 3.312(b). It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a veteran’s death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran’s death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). The Board finds the claim should be granted. As noted above, the Veteran’s cause of death was end-stage liver disease. The medical evidence of record attributes his liver disease to hepatitis C. At the outset, the Board notes that the Veteran’s service treatment records do not document any diagnosis for hepatitis C, although the Board also takes note that hepatitis C was not identified as a pathology until many years after the Veteran separated from service, and therefore, and actual in-service diagnosis would not be expected. For her part, the appellant contends that the Veteran’s hepatitis C was contracted from the use of an inoculation gun during active service. In support of her claim, the appellant has submitted various articles and references regarding the use of “jet injector” type inoculation guns, which note the potential for biological materials to be transferred from one user to the next, to include a transfer of hepatitis. In support of her claim, the appellant submitted a medical opinion written by the Veteran’s VA treating medical provider which stated that it was her opinion that the Veteran most likely contracted his hepatitis C via mass air gun inoculation performed at the time of his military service. In support of this conclusion, she noted that the Veteran’s documented history showed no evidence of jaundice, hepatitis, IV drug abuse or other drug abuse except for some marijuana experimentation when he was younger, blood product transfusion, incarceration, tattoos, body piercing, alcoholism, or prior alcohol and drug treatment. She noted that his only occupational exposure to blood was his Vietnam military service, and the mass induction vaccination program utilized by the military during his period of active service. The Board finds this opinion persuasive. It was written by a medical professional, who treated the Veteran prior to his death, and was familiar with his medical history, to include his various hepatitis C risk factors, or lack thereof. The opinion was rendered based upon the Veteran’s own medical history and known medical principles. In February 2012, the PMC sought an independent medical opinion. The VA physician cited to a VA study listing various risk factors for hepatitis C, to include injections, as well as intravenous drug use, sexual transmission, blood transfusions, occupational exposure, tattoos, body piercing, and acupuncture. The examiner then concluded that, although the earlier opinion was thorough and detailed, that the excluding of other vectors nonetheless did not in the absence of a stronger well documented-researched study rise to the level of a 50 percent or greater probability of the mass immunization technique having caused the Veteran’s liver failure. The Board finds this opinion to be less persuasive than the earlier opinion. While it too relied on known medical principles and treatise evidence, the examiner was not the Veteran’s treating physician and did not have first-hand knowledge of the progress of his disease. Further, to the extent that the treatise evidence cited listed more likely causes for transmission of hepatitis C, the physician providing the opinion did not actually apply the facts of the Veteran’s case to that evidence. As was noted in the earlier opinion and is documented in the Veteran’s treatment records, the Veteran did not have any of the other risk factors listed, beyond Vietnam service and inoculation during active service. Thus, absent more thorough discussion pertaining to the Veteran’s specific situation and medical history, this opinion is less persuasive. To be clear, in granting this appeal, the Board makes no determination of the precise etiology of the Veteran’s hepatitis C, jet injectors or otherwise. Rather, when and affording the appellant the benefit of the doubt, the Board finds that the evidence is greater in favor of the appellant’s assertion that the Veteran contracted hepatitis C while on active duty. While the precise etiology is unknown, the lack of other identifiable risk factors makes it at least as likely as not that the Veteran’s hepatitis C was acquired during active service, and as such, the claim should be granted for purposes of entitlement to DIC benefits. 2. Entitlement to accrued benefits The appellant seeks entitlement to accrued benefits. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary 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, shall, upon the death of a veteran, be paid to the living person first listed below: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6). The Board finds that the claim should be denied. Although the appellant is the Veteran’s surviving spouse, and therefore entitled to receive any benefits accrued at the time of the Veteran’s death, the Board finds that the claim must be denied as no monetary benefits were owed to the Veteran. The Veteran filed a claim for service connection for hepatitis C on February 7, 2011. He died on February [redacted], 2011, less than one month after he filed his claim. As noted above, the appellant has been successfully substituted on that claim of service connection, and the Board has determined that the Veteran’s cause of death, which was secondary to hepatitis C, should be granted service connection. Nonetheless, even presuming the claim of service connection for hepatitis C, as filed by the Veteran on February 7, 2011, was granted, no monetary benefits would have been owed to him based on that claim at the time of his death. Regardless of VA regulations concerning effective dates of awards, payment of monetary benefits based on original claims of compensation may not be made for any period prior to the first date of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. Essentially, once service connection is granted for a disability, payment for that disability is not owed to the veteran until the first of the month following the date of grant of service connection. In this matter, even presuming that service connection had been granted effective February 7, 2011, based off the Veteran’s initial claim, Federal regulations hold that he would not have been owed any money by VA until March 1, 2011. Unfortunately, he died on February [redacted], 2011, three days prior to any money potentially being owed to him. Therefore, the Board must conclude that the Veteran was not owed any money by VA at the time of his death and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel