Citation Nr: 21004305 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-56 108 DATE: January 26, 2021 ORDER Service connection for cause of the Veteran's death is granted. FINDING OF FACT 1. The death certificate reveals that the Veteran died in May 2007 with the immediate cause of the death listed as variceal bleed and the underlying cause of death listed as cirrhosis and hepatitis C. 2. The medical evidence is in equipoise as to whether the Veteran’s hepatitis C was caused by or related to active military service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for service connection for cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to February 1976. The Veteran died in May 2007. The appellant is the Veteran’s surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to Dependence and Indemnity Compensation (DIC). The appellant’s notice of disagreement (NOD) was received in January 2016. The RO issued a statement of the case (SOC) in September 2016. The appellant’s VA Form 9, substantive appeal to the Board, was received in November 2016. In January 2020, the appellant testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of her testimony is associated with the claims file. In May 2020, the Board remanded the case to the RO for further development and adjudicative action. Before the case was returned to the Board on appeal, the RO issued a rating decision in September 2020, which granted the issue on appeal of entitlement to DIC under 38 U.S.C. § 1151. This represents a full grant of the benefits sought on appeal with respect to that issue and therefore such issue is no longer in appellate status or before the Board. The appellant contends that the cause of the Veteran’s death is related to active military service. Specifically, she asserts that the Veteran contracted hepatitic C from air gun inoculations during service and complications due to his hepatitis C led to his death. The Board concludes that the most probative evidence is in relative equipoise as to whether the cause of the Veteran’s death is related to active military service. See 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.312. When a veteran dies of a service-connected disability, the veteran’s surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Turning to the issue of service connection for cause of the Veteran’s death, the evidence shows that the Veteran died in May 2007. His death certificate lists his immediate cause of death as variceal bleed and lists the underlying cause of death as cirrhosis and hepatitis C. At the time of the Veteran’s death in May 2007, the Veteran was in not in receipt of service connection benefits for any disability. Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  A review of the Veteran’s service treatment records show that the Veteran did not complain of or receive treatment for hepatitis C during active military service. Specifically, a September 1975 Report of Medical History reveals that the Veteran denied ever having or having at that jaundice or hepatitis. The September 1975 discharge examination shows that the Veteran was not diagnosed with hepatitic C. The medical evidence of record reveals that the Veteran was first diagnosed with hepatitis C in June 2001. He was diagnosed with hepatic cirrhosis in March 2007. However, there was no known test to diagnose hepatitis C until late 1980s. As the Veteran separated from service in 1975, it is not likely that he would have received a diagnosis of hepatitis C during service. Therefore, the absence of in-service manifestations or a diagnosis of hepatitis C is not dispositive of the issue. With respect to exposure to risk factors of hepatitis C, the appellant contends that the Veteran’s hepatitis C was from air gun inoculations during service. As it was common for immunizations provided by the military to be administered via air gun at the time of the Veteran’s active duty service, air gun inoculations would be consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a). Therefore, the lay statements as to the Veteran receiving air gun inoculations during service are both credible and competent in establishing the in-service event of receiving vaccination by air gun. VA treatment records also document that the Veteran reported that he had sexual intercourse with a lady who had drug problems while he was stationed in Germany. See November 2001 VA treatment record. This is something a lay person can observe, and the Veteran is competent to provide statements regarding sexual activities during service. Thus, the Veteran’s lay statement are both credible and competent in establishing the in-service event of risky sexual behavior. The Veteran’s service treatment records also document that the Veteran smoked opium and hashish and took barbiturates. However, he denied intravenous drug use during service. See September 1975 and January 1976 service treatment records. With respect to whether the Veteran’s hepatitis C is related to active military service, the claims file contains conflicting medical opinions. In this regard, a VA physician assistant provided the medical opinion that it is less likely than not that hepatitis C was related to risk factors in service. He noted that a January 1976 service treatment record shows a report of “opiate abuse, has been smoking morphine and hashish, no IV drug use.” A September 1975 discharge report noted that the Veteran reported no jaundice or hepatitis. The VA physician assistant also noted that there was no evidence of the Veteran contracting hepatitis C from unprotected intercourse and there was no evidence of IV drug use in service. Finally, the VA physician assistance stated that there is no evidence in the medical literature that suggest air gun inoculations cause hepatitis C. In contrast, a May 2020 opinion from a private physician reveals that he determined that considering every possible sound medical etiology/principle, to at least the 90 percent level of probability that the Veteran’s hepatitis C was due to his experiences with jet injector during military service. The private physician explained that the Veteran had hepatitis C without any known risk factors other than his service time vaccines, which were done with air jet gun injector. The private physician noted that these vaccinations are known to transmit virus in animals and humans, and he cited to articles in support of this statement. Furthermore, a VA nurse practitioner in July 2020 provided the medical opinion that it is as likely as not that the Veteran’s C was related to any risk factors in service to include any unprotected intercourse, air gun inoculations, or any other factors documented in the claims file while service on active duty. The nurse practitioner explained that hepatitis C is usually spread when blood from a person infected with hepatitis C virus enters the body of someone who is not infected. Today most people become infected with the hepatitis C virus by sharing needles or other equipment to prepare or inject drugs. There is no competent medical evidence indicated when he contracted hepatitis C. The records do not show any risk factors such as tattoos, HIV, or blood transfusions. Therefore, the Veteran had hepatitis C without any known risk factors other than his service time vaccines which were done more than likely with air jet gun injector. These vaccinations are known to transmit viruses in both animals and humans. In this case, the most probative medical evidence, as summarized above, is in equipoise on the issue of whether the Veteran contracted Hepatitis C during service. Specifically, the private physician provided a thorough rationale for his medical opinion based on the evidence of record, the lay statements provided by the Veteran and appellant, medical literature. The VA nurse practitioner also provided a clear explanation in support of his opinion based on the medical evidence of record and medical knowledge. In contrast, the VA physician assistant only noted that the medical literature that suggest air gin inoculations cause hepatitis C. He did not cite to or include any specific medical articles or studies that supported his medical opinion and he did not address the medical articles referenced by the May 2020 private physician. The VA physician assistant also did not provide any additional explanation for why he came to a different conclusion than the May 2020 private physician and the July 2020 VA nurse practitioner. After careful review of the evidence to include the aforementioned medical opinions, the Board finds no reason to accord more weight to the negative medical opinion over the positive medical opinions. Thus, the evidence is at least in equipoise with respect to whether the Veteran’s hepatitis C is caused by or related to risk factors to include air gun inoculations during active military service and the Board resolves any reasonable doubt in favor of the appellant. Furthermore, as noted above, the Veteran’s death certificate shows that the Veteran’s hepatitis C was the underlying cause of death. Accordingly, entitlement to service connection for cause of the Veteran’s death is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.