Citation Nr: 20052925 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 14-24 656 DATE: August 10, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT The most competent, probative evidence of record demonstrates that the Veteran’s death-causing conditions were not present until many years after service and were unrelated to his service. CONCLUSION OF LAW The criteria to establish service connection for cause of death of the Veteran have not been met. 38 U.S.C. §§ 1116, 1131, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to June 1980. Sadly, the Veteran died in October 2007; the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. In August 2017, the Appellant presented testimonial evidence at a Board hearing held via videoconferencing equipment before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Addressing the relevant procedural history, this case was previously before the Board in June of 2018 at which time it was remanded for additional development, to specifically include procuring a VA opinion. The claim has now been returned to the Board for adjudication. Entitlement to service connection for the cause of the Veteran’s death is denied. The appellant contends that the Veteran died of a disability that was related to his military service. Specifically, she has asserted that she, “strongly contends that her spouse, [the Veteran], was diagnosed with hepatitis C while in service and that the hepatitis C attributed to his cause of death”. See June 2020 Appellate Brief. VA service-connected death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To constitute the principal cause of death, a service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. To be a contributory cause of death requires a showing that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death. Rather, it must be shown that there was a causal connection between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312 (b), (c). If the evidence shows that the Veteran died of a disorder that was ultimately related to service, the regulations do not require a service-connected disability to be the primary cause of death, only to be etiologically related or causally connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As an initial matter, the Veteran’s death certificate shows that he died in October 2007. His death certificate lists sepsis as the immediate cause of death, with cardiac arrest leading to sepsis and AIDS as the underlying causes. At the time of the Veteran’s death, service connection was not established for any disorders. Regardless, the Board has considered the competent, probative evidence of record which indicates that service connection for the cause of death of the Veteran is not warranted in this case. Turning to the relevant evidence, the appellant has not asserted, and the record does not otherwise demonstrate that the Veteran reported or experienced sepsis or cardiac arrest problems during his active military service, or for many years thereafter. The Veteran’s service treatment records do not show treatment for or complaints of either condition. As such, these conditions are not at the heart of the contention in this case and will not be discussed extensively. In regard to AIDS, the remaining condition on the Veteran’s death certificate listed as contributing to his death, the appellant has previously asserted that the Veteran’s only risks for the transmission of AIDS occurred during his military service and that this condition could have manifested then. For example, she asserted, through her representative, that the Veteran’s documented chest rash in service, which was noted in an April 1977 physical examination report obtained in anticipation of separation, could be a symptom of the initial acute phase of HIV. See June 2018 Appellate Brief. In addition, as conceded previously by the Board, the Veteran’s service treatment records document instances where the Veteran was seen for treatment of venereal disease and an April 1977 physical examination report obtained in anticipation of separation includes a notation that the Veteran had the letter “M” on his right bicep and the letters “R. K” on his left forearm, which were not present at the time of the Veteran’s enlistment in July 1974. However, the Board also notes that at the August 2017 Board hearing, the appellant’s representative/witness stated that, “I have no idea how he got HIV/AIDS, but it was during civilian time, late. So the only thing that is of military significance here would be the hepatitis. We’re not talking about the AIDS”, which the appellant herself affirmed. Thus, most probative to this matter in regard to the appellant’s assertions, as stated above, is the appellant’s contention that the Veteran’s Hepatitis C, which isn’t listed on his death certificate as a contributing cause of death, began in service. The Board has conceded that the Veteran’s service treatment records showed a positive HAA test. Thus, at primary issue in this case is whether the Veteran’s Hepatitis C was incurred in or aggravated by active service as well as whether it was the principal or contributory cause of death. 38 C.F.R. § 3.312. In this case, the Board concludes that the most competent, probative evidence of record indicates that the Veteran’s Hepatitis C was not caused by or related to his military service. In addition, the evidence of record weighs against finding that the Veteran’s Hepatitis C was a contributing factor in the Veteran’s death. In order to fully consider the appellant’s contentions, a VA opinion was obtained in December 2019 in order to comply with the Board’s remand. That examiner initially found that it is less likely than not that the Veteran’s sepsis or cardiac arrest arose during or was otherwise etiologically related to his military service because, “by definition sepsis and cardiac arrest are acute events” and “[t]he body of records does not contain evidence that either of these occurred in or were related to the Veteran’s military service”. In finding that it is less likely than not that Veteran incurred his HIV infection during military service, the examiner noted that both the “Appellant[‘s] representative (page 5) and wife (page 9) have testified that [the] Veteran contracted HIV outside of military service.” The examiner further rationalized that even considering the Veteran’s in-service rash, the Veteran’s AIDS diagnosis, “was 27 years after service separation” and “[i]t would be extremely unlikely that this Veteran acquired HIV infection during service but then did not develop symptoms leading to an AIDS diagnosis until 27 years later” because “[i]n the absence of antiretroviral therapy (ART), the average time from HIV acquisition to AIDS is approximately 8 to 10 years”. Similarly, the examiner found that, “[b]ased on review of body of evidence and relevant medical literature and in accordance with accepted medical principles, it is my professional opinion that it is LESS likely than not that Veteran’s hepatitis C infection arose during military service or was related to the hepatitis documented in service treatment records.” In so opining, the examiner explicitly acknowledged and considered that, “[i]t has been asserted [that] the Veteran could have acquired hepatitis C during service from the following eating off of unclean dishes in Korea, having unprotected sex with prostitutes, and tattooing”. In acknowledging the May 1978 in-service hepatitis incident, the examiner stated that the Veteran’s, “treating providers told him he had acquired the hepatitis infection ‘from unclean dishes’” and that “[t]his would exclude hepatitis C (non-food-borne) as the cause but does supports the diagnosis of hepatitis A”. In addition, while “sexual transmission of hepatitis C can occur”, the relevant medical literature indicated that “the risk appears to be low”. Similarly, “the extent to which (tattooing) contributes to the disease burden of HCV is uncertain ... It remains unknown whether the transmission risk is from the tattooing itself or from some other associated risk not accounted for.” Further, “[t]he Veteran presented with signs of acute hepatitis” and “hepatitis C typically does not cause acute hepatitis symptoms but rather asymptomatically leads to chronic hepatitis. Thus, the Veteran’s presentation was not consistent with hepatitis C but rather was consistent with hepatitis A.” In addition, “[t]here was no evidence of chronic hepatitis as would be expected if this episode was hepatitis C” as, “[h]is follow-up liver tests (9/22/78) were normal with the treating provider assessing that Veteran had ‘no hepatitis’ at that time” and “[t]his scenario was consistent with the expected course of hepatitis A.” The examiner also noted that, “the Veteran had testing with a very sensitive liver test (gamma-glutamyl transpeptidase (GGT)) on 3/6/92 and 6/8/95. Each time the result was normal. It would be extremely unlikely to have chronic hepatitis C infection with normal GGT results. Then, on subsequent testing on 4/24/1998 the Veteran’s GGT results was markedly abnormal (greater than five times the upper limit of normal). Subsequent hepatitis C test was positive on 4/18/00. This pattern suggests the Veteran did not have hepatitis C before 6/8/1995 but that he acquired it sometime between 6/8/1995 and 4/24/1998.” This examiner addressed the lay statements made by the appellant and referenced several sources of medical literature in so opining. The examiner was also aware of the Veteran’s medical history, provided a fully articulated opinion, and furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Significantly, there are no contrary opinions of record that would support the appellant’s contentions and establish a nexus between the Veteran’s hepatitis C and his military service and death. Thus, the Board relies on this opinion, as well as the objective evidence of record, in determining that it is less likely than not that the Veteran’s death was related to his military service. In so opining, the Board has also considered the fact that the appellant previously asserted that the Veteran was exposed to herbicide agents while serving in Camp Casey in Korea which was located within the Korean Demilitarized Zone (DMZ). See e.g. July 2013 Statement in Support of the Claim. Notably, herbicide agent exposure has been conceded by VA for veterans who visited stipulated areas of certain countries, including the DMZ in Korea, during qualifying time periods during the Vietnam War. Certain diseases may be presumed to have been incurred in service where a veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such a disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307 (a)(6)(ii). In this case, VA has previously conceded that the Veteran’s military personnel records indicate that he was in fact stationed in Korea for a period of time during service. See April 2014 Administrative Decision. However, it has also been determined that the Veteran’s military records contained no record of exposure to Agent Orange or other herbicide agents, and that there was insufficient information of record to request a research of unit records from JSRRC. Id. In addition, the Veteran was in Korea from July 26, 1977 to July 28, 1978, which is not within the dates stated in 38 C.F.R. § 3.307 (a)(6)(iv) for which herbicide agent exposure may be presumed. Because of this, service connection for the cause of death of the Veteran on a presumptive basis due to herbicide agent exposure would not be warranted even if the Veteran served in the DMV and even if his death causing conditions had been among those listed in the regulations for which presumptive service connection applies. 38 C.F.R. § 3.309. Significantly, absent any competent or credible evidence of a link between the Veteran’s military service and any of the conditions that caused his death, service connection cannot be awarded on either a direct or presumptive basis. In so finding, the Board acknowledges the appellant’s belief that the Veteran’s death was connected to his military service. However, while the appellant believes that the Veteran’s Hepatitis C caused his death and was related to his service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. 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 this regard, the diagnosis and etiology of Hepatitis C, as well as the conditions noted on the Veteran’s death certificate, are not matters capable of lay observation, and require medical expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of the Veteran’s cause of death, while acknowledged, is not competent medical evidence. Lastly, the Board notes that the appellant requested additional time to submit additional documentation in March of 2020 due to “Coronavirus severely limiting turnaround time in government offices”. In June of 2020, the appellant’s representative echoed this sentiment and requested a remand for “further development” without specificity of what any such development would be. Significantly, this decision has been authored almost five full months after the appellant’s March 2020 request. It is not lost upon the Board that the appellant could have submitted any additional documentation during this lengthy time period, which was, in actuality longer than the typical 90 extensions that may be granted by the Board at the discretion of a VLJ. Without issuing an opinion as to the following, the Board is especially persuaded by the fact that the appellant asserted that any delays attributable to the novel COVID-19 pandemic caused delays within the government – not with her. Based on the foregoing, medical evidence that could have been used to support this claim was not available to the Board. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding in pertinent part that “the duty to assist is not always a one-way street. If [an appellant] wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence.”). A remand on this basis would be of no benefit to the appellant. As noted above, the Board affords great probative weight to the credible evidence of record which indicates that the Veteran’s death causing conditions were not related to service and occurred many years thereafter. Thus, in the absence of medical evidence linking the claimed disability to service, there is no basis to establish service connection and further analysis is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the [appellant].”). The Board recognizes the Veteran’s honorable service to the nation and is sincerely empathetic to the appellant’s loss of her husband as well as to the extent of his health problems prior to his death. However, the weight of the credible evidence demonstrates that the conditions involved in the Veteran’s death occurred many years after service and were not caused by any incident of service. The fatal conditions were not incurred in or aggravated by service and were not service-connected. No disability incurred in or aggravated by service caused or contributed to the Veteran’s death, and thus there is no basis to award service connection for the cause of the Veteran’s death. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for cause of death. As the preponderance of the evidence is against the claim of service connection for cause of death, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.