Citation Nr: 21061280 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-07 441 DATE: October 1, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in August 2006 due to renal failure due to hepatic failure due to hepatitis C, with diabetes contributing. 2. The Veteran's renal failure, hepatic failure, hepatitis C, and diabetes have not been shown to be etiologically related to service. 3. At the time of the Veteran's death, service connection had been established for bilateral hearing loss, tinnitus, and scars from a head injury; his disabilities did not contribute substantially or materially, combine to cause, or aid or lend assistance to the production of death. 4. The claim for accrued benefits was not received until October 2016, more than one year after the date of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.310, 3.312. 2. The criteria for accrued benefits are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1971 to September 1974. While the Veteran served during the Vietnam Era, there is no evidence he served in Vietnam or was exposed to herbicides during service. See March 2020 DD Form 214. He died in August 2006. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a VA Regional Office (RO). The Appellant testified before the undersigned Veterans Law Judge at a June 2021 hearing before the Board of Veterans' Appeals (Board). The Board notes that in her lay statements and June 2021 hearing, the Appellant indicated that she disagreed with the Veteran being denied service-connection for residuals of TBI and an acquired psychiatric disorder. While she has mentioned these issues in the context of her claim for service connection for cause of death, she has not asserted that any of these issues caused or contributed to the Veteran's death. See, e.g., January 2019 Notice of Disagreement (NOD) statement. As these issues are not on appeal, the Board will not consider them further. 1. Entitlement to service connection for the cause of the Veteran's death The Appellant asserts that her husband's death was due to service or his service-connected disabilities. In order to establish service connection for the cause of the 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 U.S.C. § 1310; 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. Id. The standards and criteria for determining whether or not a disability from which a veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C. § 1310. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even those evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). The Veteran died in August 2006. The Veteran's death certificate listed to renal failure due to hepatic failure due to hepatitis C, with diabetes contributing, as the causes of death. At the time of his death, the Veteran was service connected for bilateral hearing loss, tinnitus, and scars of the head. The Veteran's service treatment records (STR) are negative for evidence of complaints, treatment, or diagnosis of hepatitis C or diabetes. An August 1994 medical treatment record indicates that the Veteran was diagnosed with chronic active hepatitis with cirrhosis. During a September 1994 VA examination for scars, the VA examiner noted that hepatitis C was discovered at a VA medical facility during routine testing. The examiner noted that the Veteran was given transfusions for an inguinal herniorrhaphy, but this was not considered the source of the infection. The source of the infection was not known. According to the October 2006 Death Certificate, the Veteran died in August 2006 due to renal failure, due to hepatic failure, due to Hepatitis C, with diabetes contributing. An August 2016 private medical opinion by a physician certified in forensics and family medicine notes that the Veteran died of renal failure, hepatic failure, and Hepatitis C with complications from diabetes. The opinion discusses the Veteran's claimed traumatic brain injury and residuals, migraines, and posttraumatic stress disorder (PTSD) and opines that he believes these conditions were due to service. As the Veteran was not service-connected for these conditions at the time of his death, and they are not among the disorders listed on the death certificate, they are not relevant to the current appeal. In a February 2017 Substantive Appeal, the Appellant attributed the Veteran's diabetes to his sedentary lifestyle, which she attributed to the consequence of active service and his service-connected disabilities. She also asserted that he could only have been exposed to hepatitis C during his active service. During the Appellant's June 2021 Board hearing, the Appellant asserted that the Veteran's Hepatitis C arose during in-service air-gun injections. In July 2021, the Appellant submitted an article from the law firm Hill & Ponton indicating that veterans could contract hepatitis C from contaminated blood, including needle sticks or inoculations. The article also stated that the infection could go undetected for a very long time. The article also stated that veterans from the Vietnam Era were the most likely to have contracted hepatitis C. The Board notes that no VA opinion has been requested. Under 38 U.S.C. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability; (2) evidence establishing that he incurred an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A medical opinion addressing the Veteran's hepatitis C and diabetes is unnecessary in this case. Here, the Veteran indeed had diagnoses for these conditions. However, there is no evidence establishing that he incurred an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period. While the Veteran served during the Vietnam Era, there is no evidence he served in Vietnam or was exposed to herbicides during service. See March 2020 DD Form 214. There is also a lack of a medical evidence that the conditions may have been associated with service. Finally, there has been no competent evidence made linking the cause of the Veteran's death to the disabilities for which service connection was separately established. Thus, no VA opinion was requested. While the appellant believes that the Veteran's cause of death is related to 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). Her lay contentions are thus of markedly lower probative value than, and are outweighed by, the medical evidence of record. Accordingly, her opinion as to the diagnosis or etiology of the Veteran's cause of death is not competent evidence. Absent any competent evidence in support of the Veteran's claim, there is no basis for obtaining a medical etiology opinion. The Board finds the preponderance of the evidence is against the Appellant's claim. The Board observes that there is no medical evidence of hepatitis C or diabetes until many years following service. Neither the entrance nor separation medical exams noted either condition. The medical evidence does not suggest that any such disorders were related to any incident of service. Furthermore, there is no competent evidence of record showing that the disorders that resulted in the Veteran's death were incurred in service or were proximately due to or the result of any disease or injury incurred in service. The Board is very sympathetic to the Appellant's loss of her husband, the Veteran, but for the foregoing reasons the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. Accordingly, the Appellant's claim for service connection for death is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to accrued benefits Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence of record at the date of death, will upon the death of such person, be paid upon the death of a veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. See 38 C.F.R. § 3.1000(a). In this case, the Board concludes that entitlement to accrued benefits is not warranted. A claim for accrued benefits must be filed within one year after the date of death of the individual with respect to whom such benefits are sought. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000. The Veteran died in August 2006. The Appellant's VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, was not received until October 2016, more than one decade later. The claims file does not contain any communication from the Appellant indicating an intent to file a claim for accrued benefits within one year of the Veteran's death. Therefore, as the claim was not timely filed, it must be denied. In denying this claim, the Board has considered the doctrine of equitable tolling. The United States Court of Appeals for the Federal Circuit has held that equitable tolling applies when a claimant shows (1) an extraordinary circumstance; (2) that the extraordinary circumstance caused an inability to file during the requested tolling period; and (3) that there was diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014). If shown, the "clock stops" and the requested period is not counted against the time period for filing. Id. In this case, the record does not reflect that any extraordinary circumstances precluded the Appellant from filing a claim for accrued benefits within one year of her spouse's death. Therefore, the Board finds no basis for equitable tolling of the filing deadline. While sympathetic to the Appellant's claim, the Board is nonetheless bound by the law and is without authority to grant the claim on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Based on the above, there is no legal basis to award accrued benefits and the Appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.