Citation Nr: 21002317 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-53 373A DATE: January 13, 2021 ORDER Entitlement to service connection for cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in June 2014; the cause of death was cardiac arrest due to liver carcinoma. 2. The Veteran was not service connected for either causes and the disabilities that resulted in the Veteran's death did not manifest in service and is not shown to be causally or etiologically related to an in-service event. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in U.S. Army from October 1962 to September 1964. The Veteran died in June 2014, and the appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2019 Board decision, the issues of entitlement to service connection for cause of the Veteran’s death and nonservice-connected death pension benefits were denied. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (Court), which pursuant to an October 2020 Joint Motion for Partial Remand (JMPR), vacated the Board's decision as to the claim for service connection for cause of the Veteran’s death and remanded the matter for further consideration. The October 2020 JMPR also noted that the Board's denial of entitlement to nonservice-connected death pension benefits was not pursued by the appellant; therefore, Board’s decision to that issue is final. This matter return for further appellate review. Service Connection for Cause of the Veteran’s Death The appellant generally contends that the Veteran’s liver cancer was caused by Hepatitis C, which he contracted in service. No specific arguments have been provided in support of this appeal. The Veteran’s death certificate shows he died in June 2014 as a result of cardiac arrest due to liver cancer. In a November 2015 statement, the appellant asserted that the Veteran’s liver cancer was due to hepatitis C, and that she was told there was a possibility he contracted this condition while serving in the Army. Service connection for the cause of a veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Therefore, the question for the Board is whether the Veteran had hepatitis C, liver cancer or cardiac arrest that began during service or is at least as likely as not related to an in-service injury, event, or disease. Unfortunately, the Board must conclude that the Veteran did not have a current diagnosis of hepatitis C and did not have one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21Vet. App.319, 321 (2007). The appellant has not presented evidence that the Veteran was ever diagnosed with hepatitis C. The Board acknowledges the Court’s holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of hepatitis C. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In addition, the appellant has not alleged that the Veteran had manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1609. The only post-service medical evidence regarding the Veteran’s health is his death certificate, which lists only cardiac arrest and liver cancer. The Board notes that the Veteran has not been afforded a VA examination addressing the etiology of his claimed liver cancer as due to hepatitis C. VA's duty to obtain an opinion as to the etiology of the cause of the Veteran's death, or the claimed hepatitis C, is not warranted. In this regard, the Court has held that VA is not required to provide a medical opinion when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For all of these reasons, the evidence does not indicate that the claimed hepatitis C may be related to active service such as to require a medical opinion, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), or that a service connected disability caused, or substantially or materially contributed to cause, his death so as to require an opinion under DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). While the appellant asserts that the Veteran had a diagnosis of hepatitis C, she is not competent to provide a diagnosis in this case. The issue is medically complex and establishing a diagnosis of hepatitis C requires specialized medical knowledge or training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir.2007). Therefore, the appellant’s statement that the Veteran had hepatitis C, alone, is not sufficient to establish a diagnosis. Even if a diagnosis of hepatitis C was established, the Board must conclude that hepatitis C, liver cancer, and cardiac arrest are not etiologically related to service because there is no evidence of a relevant in-service event, injury or disease. Service treatment records are negative for any complaints, treatment, or diagnoses of the aforementioned conditions, or for any symptoms that could reasonably be construed as associated with those conditions. During service, the Veteran was treated for anxiety, an upper respiratory infection, coughing, a wrist injury, and conjunctivitis of the eye. His July 1964 separation examination was normal, and the accompanying medical history report shows references to colds, shortness of breath, foot trouble, epigastric pain, and nervous trouble. This history was otherwise negative, including for symptoms such as jaundice which might be associated with a liver condition. In September 1964, the Veteran affirmed that there had been no change in his medical status since the July 1964 examination. VA guidance documents have identified certain risk factors associated with hepatitis C, including blood transfusions, tattoos, intravenous drug use, high-risk sexual activity, and the sharing of razors, among others. However, the appellant has not specifically asserted the presence of any such risk factors in the Veteran’s history. Indeed, in a January 2015 form, the appellant indicated that she had been married to the Veteran since 1968, and therefore it is not clear that she would even have personal knowledge of the Veteran’s exposure to these potential risk factors during his service from 1962 to 1964. In sum, because the evidence does not establish a hepatitis C diagnosis, and because there is no relevant in-service event, injury, or disease related to the Veteran’s listed causes of death, including possible hepatitis C, the claim must be denied. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.