Citation Nr: 21063829 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 95-37 666 DATE: October 18, 2021 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for liver cancer is granted. Entitlement to service connection for the Veteran's cause of death is granted. REMANDED Entitlement to an initial disability rating exceeding 70 percent for posttraumatic stress disorder (PTSD) with Major Depressive Disorder (MDD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for a disability of the eyes is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran's hepatitis C was caused by events during his active-duty military service. 2. The evidence shows that the Veteran's liver cancer was caused by his service-connected hepatitis C. 3. The evidence shows that the Veteran's liver cancer caused his death. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for liver cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.§ 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from December 1968 to November 1971. The Veteran died in February 2013, and VA has found the appellant to be a proper substitute party for the purpose of continuing the appeal of claims pending at the time of the Veteran's death. See, e.g., August 2016 VA Memorandum. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) including decisions issued in September 1994 (service connection for eye and hepatitis disabilities), October 2007 (service connection for liver cancer), June 2014 (service connection for the cause of death), May 2018 (PTSD rating, to include TDIU). The May 2018 rating decision granted service connection for PTSD with Major Depressive Disorder and assigned a 70 percent rating effective August 13, 1990 to February 4, 2013 (the date of the Veteran's death). The Board previously remanded the hepatitis C, liver cancer, and eye disability claims in August 1998, June 2004, March 2010, March 2017, and March 2019 for additional evidentiary development. The Veteran testified at a June 2009 hearing before the undersigned Veterans Law Judge, and the Veteran previously testified before a different Veterans Law Judge in February 1998. 1. Entitlement to service connection for hepatitis C and liver cancer is granted. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, VA made a formal finding in January 2018 that some of the Veteran's service records appear to be lost or unavailable and indicated that future attempts to locate such records would be futile. In circumstances where the Veteran's service treatment records are destroyed or lost through no fault of the Veteran, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). After reviewing the totality of the evidence including the additional development VA conducted on remand, the Board finds the elements of service connection have been met. VA examiners have assessed that the Veteran contracted hepatitis C and that the hepatitis C caused his liver cancer during the period on appeal. However, while the January 2018 and March 2019 VA examiners indicated that there was insufficient evidence that the Veteran contracted hepatitis C through high-risk sexual activity during his military service, the October 2019 VA examiner indicated it is at least as likely as not the cause was sexual activity during the Veteran's military service. As the Board noted in its March 2019 remand order, VA medical records from August 2002 show the Veteran reported a history of unprotected sex in the Republic of Vietnam, which is a known risk factor for hepatitis C. The Board finds the Veteran is competent to report high risk sexual activity and finds his statements about such activity to be credible. While the Veteran's available service records do not document the Veteran's high-risk sexual activities, VA has found pertinent service records are missing and unobtainable. After reviewing the available records, the Board finds no compelling alternative explanation for how the Veteran contracted hepatitis C. Affording the benefit of the doubt to the Veteran, the Board grants entitlement to service connection for hepatitis C and liver cancer. 2. Entitlement to service connection for the Veteran's cause of death is granted. The appellant specifically seeks entitlement to service connection for the cause of the Veteran's death under 38 U.S.C. § 1310. In order to establish service connection for the cause of a Veteran's death, the applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. 38 U.S.C.§ 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to constitute a contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(2). In this case, the Board finds the evidence shows the Veteran's service-connected liver cancer constitutes the principal cause of the Veteran's death. The Veteran's death certificate lists decompensated chronic liver disease as the immediate cause of death, and the Veteran's VA treatment records detail the Veteran's ongoing treatment for liver cancer shortly before his death. See, e.g., February 2013 treatment records from the San Juan VA Medical Center. Accordingly, the Board grants entitlement to service connection for the cause of the Veteran's death. REASONS FOR REMAND The record shows that the Veteran was receiving social security disability benefits during the period on appeal, which is relevant to evaluating his eligibility for an increased disability rating for PTSD and entitlement to TDIU. See, e.g., January 2013 Independent Occupational Psychiatric Report from V.L., M.D. (noting the Veteran indicated he stopped working approximated eight years prior and was receiving social security disability benefits). The social security disability records are not associated with the claims file, and the claims file lacks adequate documentation indicating VA made adequate attempts to obtain the records. See 38 U.S.C. § 5103A. The records may also be relevant to the Veteran's claim for service connection for a disability of the eyes. On remand, VA should request copies of the records from the Social Security Administration and make reasonable attempts to obtain all outstanding records with the assistance of the appellant. The rating criteria for psychiatric disorders has changed during the period on appeal. See 38 C.F.R. § 4.132 (1995) (General Rating Formula for Psychoneurotic Disorders). For example, a 100 percent rating under the older rating criteria contemplated the following disability picture: The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. The record lacks an adequate assessment of the Veteran's PTSD using the older rating criteria. After obtaining the outstanding records, VA should obtain a retrospective medical evaluation of the severity of the Veteran's PTSD during the appeal period under the older rating criteria. In regard to the Veteran's disabilities of the eyes, the Board finds the VA examiners did not adequately evaluate the extent to which the Veteran's service-connected disabilities aggravated his eye disabilities. The March 2019 VA eye disability examiner indicated that while the Veteran's service-connected diabetes mellitus is a contributing factor to the eye disabilities, it has not "significantly contributed" to the Veteran's eye disabilities. The opinion does not address the correct standard for secondary service connection based on aggravation according to the recent case of Ward v. Wilkie, 31 Vet. App. 233 (2019). In pertinent part, the Ward decision found that any incremental increase in disability (any additional impairment of earning capacity) in non-service-connected disabilities resulting from a service-connected condition regardless of its permanence may be a basis for secondary service connection under 38 C.F.R. § 3.310. There is no requirement aggravation be permanent or even that it "significantly contributed" to the current disability. A subsequent opinion from another examiner in October 2019 also provides a negative opinion on aggravation without adequate rationale explaining the extent to which the diabetes may be a contributing factor. On remand, VA should obtain an addendum opinion addressing these deficiencies. The Board REMANDS these matters for the following actions: 1. VA should contact the appellant and her attorney and request their assistance in identifying and obtaining outstanding relevant record. Such records include (but are not limited to) information identifying the Veteran's prior employers, job duties, and income during the period on appeal. VA should request copies of the Veteran's disability paperwork from the Social Security Administration, which should contain relevant employment data and assessments of the Veteran's disabilities. 2. VA should carefully review each document in the claims file and ensure all Spanish language records are translated into English and that the translations are clearly labeled in the file. 3. After associating all outstanding relevant records with the claims file, VA should obtain a retrospective medical opinion evaluating the severity of the Veteran's mental disabilities according to older rating criteria applicable to the period on appeal. See 38 C.F.R. § 4.132 (1995). For example, the examiner should opine whether the Veteran's disability picture manifested with symptoms contemplated by a 100 percent rating including: "The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment." 4. After associating all outstanding relevant records with the claims file, VA should obtain another medical opinion detailing the likelihood and extent to which the Veteran's service-connected disabilities including diabetes mellitus aggravated the Veteran's eye disabilities. The examiner should opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's service-connected disabilities including diabetes mellitus aggravated the Veteran's eye disabilities. (Continued on the next page) The "aggravation" for the purpose of secondary service connection does have to be permanent and may include even a temporary worsening. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should address pertinent evidence with adequate rationale including the March 2019 VA eye disability examiner's finding that diabetes mellitus is a "contributing factor. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.