Citation Nr: 21016061 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 18-35 526 DATE: March 19, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The Veteran had no service-connected disabilities during his lifetime; and the preponderance of the evidence is against finding that the Veteran’s cause of death from hepatocellular carcinoma is related to his active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to December 1978. The Veteran died in July 2017. The appellant is the Veteran's surviving spouse. The Veteran had no service-connected disabilities during his lifetime. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that, prior to the Veteran's death, he had no pending claims before VA. In December 2017, VA received the appellant's claim for the cause of the Veteran's death, which was denied by the agency of original jurisdiction (AOJ) and thereafter appealed to the Board. The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A hearing transcript is associated with the claims file. This case has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). Entitlement to service connection for the cause of the Veteran’s death. The appellant contends that she is entitled to service connection for the cause of the Veteran’s death. As explained below, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran death is related to his active service. The law provides that a surviving spouse of a qualifying veteran who dies as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise 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. 38 C.F.R. § 3.312(a)-(c). Here, the Veteran died on July [REDACTED], 2017, nearly 40 years after service discharge. The death certificate lists his cause of death as “hepatocellular carcinoma, metastatic to lung and lymph nodes.” Medical records associated with the claims file show that, prior to his death, the Veteran was placed in hospice care and his death was caused by hepatocellular carcinoma (metastatic liver cancer). The record shows that he had no service-connected disabilities during his lifetime. The Board notes that liver cancer is not shown in service or soon after service separation. The Veteran’s service treatment records do not reflect any complaints or findings for abnormal hepatic pathology, to include on his service separation examination dated in December 1978. The examination report shows the Veteran’s serology was negative and clinical examination of the abdomen and viscera was normal. A VA treatment report dated in June 2017 is the first documentation of the Veteran's diagnoses of liver cirrhosis, Hepatitis C and terminal metastatic hepatocellular carcinoma. It was noted the Veteran selected Gulfside Hospice for his palliative care and VA was reported as the payor source for the hospice. The Board further notes that hepatocellular carcinoma has not been causally linked to the Veteran’s military service. Notably, neither the Veteran, prior to his death, nor the appellant, during the pendency of the appeal, has asserted that the Veteran's hepatocellular carcinoma is related to an in-service disease or injury. Also, competent medical evidence has not been presented showing that the Veteran's liver cancer was attributable to any in-service disease or injury. The Board recognizes the appellant’s argument that she is entitled to DIC benefits because VA paid for the Veteran’s hospice care and the AOJ granted her appeal for entitlement to VA burial benefits. See e.g. Form 9 (November 2018). The appellant has claimed that the AOJ’s February 2018 award letter notifying her that burial benefits had been awarded also served as an acknowledgement by VA that it was responsible for the Veteran’s death because he died while under VA care. See e.g. Correspondence (April 2018) & VA Form 9 (July 2018). Pursuant to VA regulations, a burial allowance may be paid if a veteran dies from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. See 38 U.S.C. § 2303; 38 C.F.R. § 3.1706. As applied to the facts in this case, the Veteran’s death was caused by nonservice-connected hepatocellular carcinoma; he was admitted to a non-VA facility, specifically, Gulfside Hospice; and his palliative care was pre-authorized and at VA expense. See Correspondence (Summary of VA payments for Gulfside Hospice from July 5, 2017 to July 15, 2017). As such, the appellant was awarded VA burial benefits for the Veteran’s pre-authorized palliative care, at a non-VA facility, at VA’s expense for a nonservice-connected condition that caused his death. The Board notes the February 2018 award letter merely served to notify the appellant that the AOJ granted her claim for burial benefits on appeal, and did not serve as an acknowledgement by VA that it was responsible for the Veteran’s death because he died while under VA care or while traveling at VA expense. To the extent the appellant believes that service-connected death benefits could be granted based on the foregoing, the Board notes the appellant’s arguments appear to be based on a misunderstanding of the VA notification letter as well as the different legal criteria in establishing entitlement to burial benefits for nonservice-connected cause of death as opposed to establishing entitlement to service connection for cause of death. Lastly, the record does not show that the appellant or her representative have claimed the Veteran's death was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable under 38 U.S.C. § 1151. Unfortunately, the preponderance of the evidence weighs against a finding that the Veteran’s hepatocellular carcinoma was related to his active service. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.