Citation Nr: 21063457 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-00 169A DATE: October 14, 2021 ORDER Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1310 based on service connection for the cause of the Veteran's death is granted. The claim of entitlement to DIC pursuant to 38 U.S.C. § 1318 is dismissed as moot. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's hepatitis C, a noted contributing condition to his cause of death, was related to his active-duty military service. 2. The grant of service connection for the cause of the Veteran's death renders moot the Appellant's claim for DIC under 38 U.S.C. § 1318. CONCLUSIONS OF LAW 1. The criteria for DIC pursuant to 38 U.S.C. § 1310 based on service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 2. The claim of entitlement to DIC pursuant to 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. § 7105; 38 C.F.R. § 3.151. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from April 1968 to November 1969. His awards and decorations included the Purple Heart Medal. He died in October 2016. The Appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Appellant testified before the undersigned Veterans Law Judge at a virtual Board hearing in July 2021. A transcript of the hearing has been associated with the claims file. 1. DIC pursuant to 38 U.S.C. § 1310 based on service connection for the cause of the Veteran's death is granted. The Appellant seeks service connection for the Veteran's cause of death, and asserts that the Veteran's Hepatitis C, which led to the primary cause of the Veteran's death of cirrhosis of the liver, was related his active-duty military service. Specifically, the Veteran, prior to his death, asserted that he underwent a blood transfusion in 1969 while deployed in Vietnam following an injury that occurred during active-duty service. This blood transfusion, the Veteran asserted, was the cause of his development of Hepatitis C. In a claim of service connection for a veteran's cause of death, i.e., DIC, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. DIC is also awarded if the veteran's death can be service connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. That is, service connection for the cause of a veteran's death is granted, postmortem, and DIC is awarded, if the evidence shows that a fatal disease or injury was actually incurred or aggravated in service, though service connection had not been granted for the disease or injury prior to a veteran's death, was either the principal or a contributory cause of death. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the cause of a veteran's death, due to a cause not already service connected, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a), 3.312(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a [claimant] must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge can still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, for combat veterans, as defined under 38 U.S.C. § 1154(b), lay evidence alone can establish the in-service element of service connection, if consistent with the circumstances, conditions, or hardships of such service, even if there is no official record. 38 C.F.R. § 3.304(d). This is commonly referred to as the "combat presumption." 38 U.S.C. § 1154(b) does not establish service connection for a combat veteran, but rather aids him in relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's death certificate shows that he died in October 2016 and the cause of death is noted as hepatic cirrhosis, due to or as a consequence of acute renal failure and hyperkalemia. See Death Certificate. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD), but no other disabilities. The Veteran's STRs and post-service medical records have been associated with the claims file. The Veteran's STRs do not contain any reports of Hepatitis C, acute renal failure, or hyperkalemia. Additionally, there are no notations referencing a blood transfusion throughout the Veteran's STRs. However, the Board notes that there is a note referencing an injury to the Veteran's face and neck from August 1969, which is alleged to be the precipitating event for the blood transfusion. The Veteran consistently reported receiving a blood transfusion following an injury during his active duty service. The Veteran's Form DD-214 confirms his military occupational specialty (MOS) as Military Police, as well as his receipt of the Purple Heart Medal, indicating that he served in a combat capacity at one point and sustained injuries. In this regard, the Veteran's statements are wholly consistent with the circumstances, conditions, and hardships of his combat service. Given the consistency of his statements and his military records, an in-service injury and/or event is presumed. A letter dated October 16, 2016 was submitted by the Appellant from Dr. J. W. which discussed the Veteran's medical conditions as well as their relation to service. Dr. J. W. treated the Veteran for complications due to hepatitis C and cirrhosis, hepatocellular carcinoma, and hepatic decompensation. Dr. J. W. stated that "[u]pon reviewing [the Veteran's] history, he received blood transfusions following a facial injury in 1969 while deployed in the Vietnam War. He therefore received blood prior to the 1990's, when blood screening for hepatitis C became prevalent, and, this is the ONLY identifiable risk factor for him having contracted hepatitis C. Chronic hepatitis C is certainly, without a doubt, what contributed to his cirrhosis and chronic liver disease. Unfortunately, he developed complications of hepatitis C cirrhosis, including biopsy proven hepatocellular carcinoma, ascites, encephalopathy, chronic hydrothorax, and volume overload. I was saddened to recently hear that [the Veteran] had passed away due to complications of cirrhosis... [the Veteran] more likely than not got his hepatitis C from the blood transfusion during Vietnam in 1969, which certainly contributed to his cirrhosis, cancer, and ultimately, his death." A VA opinion was obtained in March 2017. The VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reviewed all available medical records and indicated that "the Veteran's STRs report that on August 10, 1969 the Veteran was hit in the throat and neck. He was diagnosed with sternocleidomastoid bruise. However, there are no records stating that the Veteran had any surgery or actually received a blood transfusion at that time. His separation physical on November 28, 1969 notes no surgical treatment or blood transfusion history." The VA examiner referenced a gastroenterology note dated August 16, 2002 which reflects that the Veteran stated that he believed he contracted hepatitis C from an ex-wife. The VA examiner further stated that "[b]ased on my review of the available medical records, it is my medical opinion with a high degree of medical certainty that upon review of the Veteran's STRs, I did not find any evidence that supports the Veteran had a blood transfusion during military service. Also based on the known temporal profile of the natural progression of hepatitis C, which was diagnosed in 2002, it is next to impossible that this hepatitis C was contracted in the 1960s, over three decades prior; it is much more likely that this infection was contracted more recently (sometime in the late 1980s or 1990s)." Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran contracted his hepatitis C from his active-duty military service. The VA medical opinion from March 2017 explains that there were no findings in the Veteran's STRs that reflect a history of surgery or a blood transfusion. On the other hand, the Veteran did serve in combat, and the evidence of his MOS and receipt of the Purple Heart support his prior statements regarding the injuries sustained. Furthermore, the medical opinion subscribed by Dr. J. W., notes that in his professional opinion that it is likely that the Veteran developed hepatitis C from a transfusion during active-duty service, which then was a primary contributor to his later cirrhosis of the liver and other causes of death. Accordingly, the Board finds that as there is probative evidence in favor and against the finding that the Veteran's hepatitis C was related to his active-duty service; as such, the evidence is at least in equipoise. Resolving doubt in the Appellant's favor, the Board finds that service connection for cause of death is warranted, as the record reflects the Veteran's hepatitis C was a contributory cause of death and the evidence is at least equipoise as to whether the Veteran's hepatitis C originated in service. Thus, resolving doubt in the appellant's favor, service connection for the Veteran's cause of death is granted. 2. The claim of entitlement to DIC pursuant to 38 U.S.C. § 1318 is dismissed as moot. The Board notes that the Appellant has also asserted entitlement to DIC benefits pursuant to 38 U.S.C. § 1318. However, in light of the fully favorable decision herein with respect to DIC benefits pursuant to 38 U.S.C. § 1310, the issue of entitlement under 38 U.S.C. § 1318 is moot. Notably, the award of DIC pursuant to 38 U.S.C. § 1310 is the greater benefit. As such, the issue of entitlement to DIC pursuant to 38 U.S.C. § 1318 is dismissed. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.