Citation Nr: 21014749 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-50 187A DATE: March 15, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death, for burial benefits purposes, is denied. FINDINGS OF FACT 1. The Veteran died in September 2005 and his death certificate lists the cause of death as hepatocellular carcinoma and hepatitis C. 2. A disability of service origin did not cause or contribute to the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death, for burial benefits purposes, have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1967 to April 1969. He died in September 2005. The appellant is his surviving daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Philadelphia, Pennsylvania. A December 2017 rating decision confirmed and continued the denial. In August 2020, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Entitlement to service connection for the cause of death The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C. § 1310; see also 38 C.F.R. § 3.312. A service-connected disability is considered the “principal” cause of death when that disability, “singly 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 inherently one not related to the principal cause. 38 C.F.R. § 3.312(c). A contributory cause must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” Id. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). In the present claim, the Veteran died in September 2005. His death certificate lists the immediate cause of death as hepatocellular carcinoma and hepatitis C. See July 2014 Certificate of Death. At the time of his death, service connection was established for syphilis, rated as noncompensable. In January 2015, service connection was established for dementia, rated as 50 percent disabling effective July 8, 2003 for purposes of accrued benefits. As an initial matter, there is no evidence to indicate that the Veteran’s service-connected disabilities contributed substantially or materially to his death as he was not service-connected for hepatocellular carcinoma or hepatitis C, at the time of his death. The appellant asserts that the Veteran’s death was related to his active duty service. Specifically, the appellant has stated that the Veteran contracted hepatitis C during his active service which resulted in his death. See October 2005 Correspondence. Accordingly, the central issue is whether service connection is warranted for the Veteran’s hepatitis C. Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Risk factors for incurring hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See Veterans Benefits Administration (VBA) letter 211B (98- 110), November 30, 1998. As stated in the Board’s August 2020 remand, the Veteran’s service treatment records do not show any complaints of, or treatment for, symptoms of hepatitis C during active service. However, there was no known test to diagnose hepatitis C until the late 1980s. As the Veteran separated from service in 1969, 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. Given the evidence of in-service high-risk sexual activity, the Board remanded this matter to obtain a medical opinion on whether the Veteran’s hepatitis C was related to any incident of service. A September 2020 VA medical opinion found it was less likely than not that the Veteran’s hepatitis C was related to his active duty service, to include sexual behavior resulting in sexually transmitted diseases. The examiner rationalized that the risk of transmitted hepatitis C through sexual contact is very low, even in long-term relationships in which one part is positive for hepatitis C. Rather, the examiner found the Veteran’s hepatitis C was at least as likely as not related to his post-service risk factors, including intravenous drug abuse and a 1985 blood transfusion. The examiner explained that hepatitis C is primarily transmitted by exposure to blood containing hepatitis C. See September 2020 Miscellaneous Disability Benefits Questionnaire. The September 2020 VA medical opinion constitutes probative evidence that the Veteran’s hepatitis C was not related to his active duty service, to include sexual behavior resulting in sexually transmitted diseases, as it represents the conclusion of a medical professional based on review of the Veteran's history. To the extent the appellant states that the Veteran’s hepatitis C was related to his active service, her statements are outweighed by the VA medical opinion. In this regard, whether hepatitis C is more likely related to a certain risk factor(s) over others is a determination that is too complex to be made based on lay observation alone and thus requires medical expertise. The appellant is not shown to have medical expertise, and thus is considered a lay person in the field of medicine. Consequently, her own opinion on that issue is not probative, and is outweighed by the findings of the VA medical doctor. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). In sum, the evidence of record demonstrates that the Veteran’s hepatitis C was not incurred during his active duty service. Rather, the Veteran’s post-service risk factors are the cause of his hepatitis C. Based on the foregoing, the Board finds that service connection for hepatitis C is not warranted and a disability of service origin did not cause or contribute to the Veteran’s death. Consequently, service connection for the cause of the Veteran’s death, for burial benefits purposes, is not warranted. In arriving at the decision to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board is deeply sympathetic and acknowledges that the Veteran had honorable service. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As, on these facts, there is no legal basis to award burial benefits, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.