Citation Nr: 18155146 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-36 611 DATE: December 4, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran's death is dismissed. FINDINGS OF FACT 1. The Veteran died in February 2012 and his death certificate lists the immediate cause of death as cardiac arrest, due to or as a consequence of coronary artery disease and hepatocellular cancer; the Veteran also experienced hepatitis C which contributed substantially and materially to his fatal hepatocellular cancer. 2. The evidence is at least evenly balanced as to whether the hepatitis C that contributed substantially and materially to the Veteran’s death was related to service. 3. The award of service connection for the cause of the Veteran’s death constitutes a complete grant of the benefits sought on appeal. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the appellant, the criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.102, 3.303(a), 3.312. 2. The claim for compensation under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death is moot. 38 U.S.C. §§ 1151, 7105; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1970. He died in February 2012 and the appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision. The appellant testified before the undersigned Veterans Law Judge at a November 2018 hearing. A transcript of the hearing has not yet been associated with the Veteran’s claims file. However, as the Board is granting the benefit sought on appeal in full, the transcript is not necessary at this time. 1. Entitlement to service connection for the cause of the Veteran's death Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310 (a); 38 C.F.R. § 3.5 (a)(1). The death of a veteran will be considered as having been 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). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). In determining whether the 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. Id. In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310 (a). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). 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. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The question for the Board is whether any of the causes of the Veteran’s death were related to service. For the following reasons, the Board finds that the Veteran experienced hepatitis C which contributed substantially and materially to his fatal hepatocellular cancer, and that the evidence is at least evenly balanced as to whether the hepatitis C was related to service. Initially, the Board notes that it denied service connection for hepatitis C in an April 2004 decision. Significantly, however, “issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran’s lifetime.” 38 C.F.R. § 20.1106; see Sheets v. Nicholson, 20 Vet. App. 463, 466 (2006) (“VA treats a claim for DIC as an entirely new and original claim and adjudicates it without regard to any prior disposition of issues during a veteran’s lifetime.”); see also Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007), rev’d on other grounds sub nom. Hupp v. Shinseki, 329 F. App’x 277 (Fed. Cir. 2009) (table) (“[A] DIC claim is an original claim for benefits that is independent of any underlying service-connection claim lodged by a veteran or pending at the time of the veteran’s death. Consequently, VA adjudicates a DIC claim without regard to any prior negative disposition of issues during a veteran’s lifetime and decides that claim disregarding any prior determination on the credibility or probative value of any evidence submitted in connection with a veteran’s previously denied or pending service-connection claim”). The Veteran died in February 2012. His death certificate lists the immediate cause of death as cardiac arrest, due to or as a consequence of coronary artery disease and hepatocellular cancer. Moreover, the Veteran’s treatment records reflect that he experienced hepatitis C for many years and there is evidence that his hepatitis C contributed to his fatal hepatocellular cancer. In this regard, a VA physician reviewed the Veteran’s claims file in May 2013 and opined that the Veteran’s death “was caused by hepatitis C infection that progressed to cirrhosis and hepatocellular carcinoma.” He explained, in pertinent part, that the Veteran was initially diagnosed as having chronic hepatitis C, genotype 3a, in 1994. Treatment with interferon and ribavirin was attempted on two occasions in the 1990s, but both attempts were unsuccessful in eradicating the infection. His liver function slowly worsened and in May 2009 he was diagnosed as having compensated cirrhosis. In December 2011, he presented for treatment due to abdominal cramping following a September 2011 colonoscopy. A CT scan revealed multiple enhancing liver mases which were subsequently identified as being diffuse multifocal hepatocellular carcinoma. Overall, the Veteran had chronic hepatitis C infection that led to cirrhosis which, in turn, resulted in his fatal hepatocellular carcinoma. Thus, there was a clear causal relationship between his hepatitis C infection and his subsequent death from liver cancer. Patients who have developed cirrhosis from hepatitis C are at increased risk to develop hepatocellular carcinoma. There was sufficient clinical evidence by 2009 to indicate that the Veteran was cirrhotic. As for the etiology of the Veteran’s hepatitis C, he contended that it was related to various risk factors in service, including dental surgery and immunizations given by air injectors. There are conflicting medical opinions as to whether the Veteran’s hepatitis C was related to such in-service risk factors. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the appellant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In a July 2001 letter, a VA gastroenterologist reported that the Veteran was undergoing repeat treatment for hepatitis C and that it was likely (“more likely than not”) that he “acquired his hepatitis C infection while in military service.” The physician reasoned that in addition to other suspected sources of hepatitis C which are common to all veterans, the Veteran underwent dental surgery in service while stationed in Japan in 1970. It was unlikely that appropriate sterilization procedures were in place at the time of the dental surgery. Thus, the surgery was “very likely” a possible cause for the Veteran’s hepatitis C. He had a later history of drug use, but he also received injector gun vaccinations during service. This was “another possible source for Hepatitis.” In May 2003, another VA physician reviewed the Veteran’s claims file and opined that it was unlikely that he acquired his hepatitis C during service, either from dental surgery in 1970 while in Japan or due to a repair of a laceration above his eye during the same period. The rationale was, in pertinent part, that the Veteran had a history of intravenous heroin and cocaine use which was stopped by 1985. It was much more likely that the use of intravenous drugs was the source of the Veteran’s hepatitis C. The physician further noted that the Veteran had porphyria cutanea tarda and that it was “highly probable” that this was “a result of chronic hepatitis C.” The actual start of the porphyria cutanea tarda was in 1969, as reported by the Veteran. Hence, the disease predated the dental surgery in 1970 and the laceration repair above the Veteran’s eye. He did not receive any blood transfusions during either of these procedures. Although the Veteran reported that non-sterile syringes were used for the administration of topical sedation during his procedures, there was no evidence that this was the practice during that period of time. Also, the most common type of hepatitis C in Japan was the type 1b HCV, with a small amount of type 2a and type 2b. The Veteran, however, had type 3a hepatitis. Thus, it was extremely unlikely that his hepatitis C began during his military service in Japan. Overall, it was unlikely that the Veteran acquired hepatitis C from dental surgery in 1970 or the repair of a laceration above his eye during the same period. It was much more likely that his use of intravenous drugs was the source of his hepatitis C. The July 2001, May 2003, and May 2013 opinions are all based upon treatment of the Veteran and/or a review of his treatment records and reported history, and they are all accompanied by specific rationales that are consistent with the evidence of record. Thus, these opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In light of the May 2013 opinion, the Board finds that the evidence indicates that the Veteran’s hepatitis C contributed substantially and materially to his fatal hepatocellular cancer and, therefore, was etiologically related to his cause of death. There is no medical opinion contrary to this conclusion. Moreover, the July 2001 opinion indicates that the Veteran’s hepatitis C was related to service. Although the May 2003 opinion specifically indicates that the Veteran’s hepatitis C was not related to service, the Board points out that the rationale which accompanies the opinion appears to indicate otherwise. Specifically, the physician explained that the Veteran’s porphyria cutanea tarda was the result of his hepatitis C and that the porphyria cutanea tarda had its onset during service in 1969. This appears to suggest that the hepatitis C did have its onset in service, despite the physician’s overall opinion to the contrary. Nevertheless, based on the July 2001 and May 2003 opinions, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the Veteran’s hepatitis C was the result of service. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Overall, in light of the medical opinions of record and the Veteran’s reported history, the Board finds that the evidence indicates that his hepatitis C was related to service and that the hepatitis C contributed substantially and materially to his fatal hepatocellular cancer. Accordingly, service connection for the cause of the Veteran’s death is warranted. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran's death The appellant also seeks compensation under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death. Compensation pursuant to 38 U.S.C. § 1151 shall be awarded for a qualifying death in the same manner as if such death was service-connected. 38 U.S.C. § 1151. As discussed above, the Board is awarding service connection for the cause of the Veteran’s death. Hence, this is a complete grant of the benefit sought on appeal. Moreover, the date of receipt of the claim of service connection for the cause of the Veteran’s death claim is prior to the date of receipt of the claim for compensation pursuant to 38 U.S.C. § 1151. The grant of service connection for the cause of the Veteran’s death is an equal benefit as that sought by the 38 U.S.C. § 1151 claim. Therefore, there no longer remains any controversy or justiciable claim as regards the issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death. Hence, the section 1151 claim is moot, requiring dismissal of this aspect of the appellant’s appeal. See 38 U.S.C. § 7104. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel