Citation Nr: 21024731 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-21 076 DATE: April 26, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in September 2006; his death certificate shows that his immediate cause of death was complications of hepatitis C. 2. The evidence of record is in relative equipoise as to whether the Veteran’s in-service hospitalization and treatment for hepatitis A is related to his infection with hepatitis C. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1968 to May 1970. The Veteran died in September 2006, and the appellant is his surviving spouse. This matter was previously before the Board of Veterans Appeals (BVA) in February 2019 and January 2020 and was remanded to the Agency of Original Jurisdiction (AOJ) for additional development including new medical opinions and updated records. The case has since been returned to the Board for further appellate review. The January 2020 remand directed the AOJ to locate three pages from the Veteran’s service treatment records that were illegible in the claims file. The appellant submitted legible copies of the three pages, and they are associated with the file. Thus, that issue is resolved. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death The appellant claims service connection for the Veteran’s cause of death. Specifically, the appellant claims the Veteran contracted hepatitis C while in service. 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. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it 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)(1). 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Veteran died in September 2006. The Veteran’s death certificate documents that his cause of death was “Complications of Hepatitis C.” At the time of the Veteran’s death, he was not service connected for any disabilities. The post-service medical evidence of record prior to the Veteran’s death documents the following pertinent findings. Private laboratory testing for the Veteran in February 2001 was positive for hepatitis C antibodies. Thereafter, an August 2001 private treatment record documented his assessment of hepatitis C along with the following note: “The patient has never done any IV drugs and he is not sexually promiscuous. He may have had a blood transfusion in 1969 while in the military. He really has minimal risk factors for Hep[atitis] C.” During a November 2001 Vet Center intake interview, it was noted that the Veteran, while serving in Vietnam, “was a typist, but sick of typing so he would go out on patrols.” At a January 2003 VA hepatitis examination prior to his death, the Veteran reported that while he was in the military, he helped take care of the wounded and was exposed to blood. It was also noted that he had contracted hepatitis A in service; while he stated that he did not remember his specific hepatitis treatment, he alleged that he did have intravenous medications in the hospitals, as well as injections and invasive testing (though he was unsure about a blood transfusion while in the hospital). It was also noted that he denied illicit IV drug use or intranasal drug use. The VA examiner noted the Veteran’s pertinent in-service treatment for hepatitis as well as the Veteran’s report that the company cook had had hepatitis five weeks before he became ill. The VA examiner opined that, for the Veteran’s history of hepatitis A in the military, this was treated effectively and the Veteran was released without any symptoms, and opined: “Therefore, it is my impression, there were no hepatitis A residuals.” The VA examiner also opined that, for the Veteran’s current diagnosis of hepatitis C: “Review of risk factors as noted above provide no definite etiology for hepatitis C. However, exposure to blood while in the military and possible hospital interventions (injections, invasive testing) at the time of hepatitis A treatment pose the most likely risk factors.” Thereafter, in March 2003, a different VA physician reviewed the claims file and noted the Veteran’s in-service treatment for hepatitis; however, this VA physician also noted the lack of documentation in the Veteran’s STRs of the use of either hemodialysis or blood transfusions during the course of his in-service treatment for hepatitis. The VA physician also opined that the Veteran’s “report of blood product exposure in some health capacity seems unlikely as his military occupation was that of a clerk typist.” Furthermore, the VA physician noted the documentation in the Veteran’s STRs that “he had a history of using all types of drugs including LSD” and that he was “apparently arrested by civilian authorities and was discharge[d] from service due to unsuitability and unfitness for service, presumably related to his well-documented drug use.” The March 2003 VA physician opined that the veteran’s diagnosis of hepatitis C is most likely due to the Veteran’s history of drug abuse during service. The VA physician further opined that the opinion of the January 2003 VA examiner (i.e., that the Veteran’s hepatitis C was likely related to his exposure to blood and possible hospital interventions for treatment of hepatitis A in service) “while potentially accurate based on the [V]eteran[’]s self-reported history was not based on an accurate factual history” as the Veteran did not reveal to the January 2003 VA examiner his “long standing history of drug abuse during his military service[.]” The AOJ obtained a medical opinion from a primary care physician at the Milwaukee VAMC in August 2019. Following a review of the Veteran’s file, the examiner concluded it would be speculative to conclude the Veteran’s hepatitis C was incurred in or related to an incident in military service. In his review, the examiner noted several risk factors for the transmission of hepatitis C, including blood exposure, intervenous drug use, tattoos and body piercings, high risk sexual activity, and family history of hepatitis C. The examiner also noted the appellant’s reports that she had not witnessed him engage in any risky lifestyle behaviors during her time with him. The examiner went on to state the Veteran’s records were silent regarding his lifestyle between 1970 and 1975, apparently asserting the Veteran’s hepatitis C may have been contracted during that period of his life. The January 2020 Board remand found that the August 2019 examination was inadequate because of its reliance on speculation. In its remand, the Board instructed the AOJ to arrange for a new opinion from an examiner as to whether it was as least as likely as not that the Veteran’s hepatitis C originated during his period of active service. The AOJ was reminded that examiners are not free to ignore a veteran’s statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). A new opinion was obtained in September 2020 in which the VA examiner opined that it is less likely than not that the Veteran’s hepatitis C was related to service. The examiner noted the potential exposures to blood that the Veteran mentioned are not documented in the Veteran’s record such as a stabbing, a suicide by a bunkmate, and assisting wounded soldiers. The examiner also concluded that more likely than not, drug use, intranasal or intravenous, was the mode of acquisition of hepatitis. As with the previous VA examinations in this matter, this speculation about the Veteran’s drug use, renders this examination inadequate. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the Veteran consistently denied intravenous or intranasal drug use. Furthermore, the one admission to specific drug use in the file named LSD and marijuana—drugs that are not taken through intravenous or intranasal use—as drugs the Veteran had taken and noted that the Veteran hallucinates when he takes drugs. The Veteran’s wife submitted a statement that she met the Veteran in May 1975 and never saw him engage in any risky lifestyle behaviors during her time with him. Determinations of credibility are findings of fact to be made by the Board in the first instance. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 511; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (finding that the weight and credibility of evidence “is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”); see also Wood (Bruce) v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The [Board] has the duty to assess the credibility and weight to be given to the evidence.”). (Continued on the next page)   The record contains no adequate medical opinions. The January 2003 VA examiner cited the Veteran’s hospitalization and treatment as a one of the likely risk factors. The Board acknowledges that the January 2003 VA examiner also mentioned the potential exposures to blood that the Veteran reported but are not documented in his service record. While this reduces the probative value of the opinion, it does not negate the part of the opinion regarding the risk of exposure to hepatitis C from the in-service treatment for hepatitis A. Subsequent VA opinions are inadequate because they relied on improper speculation to find it more likely that intravenous or intranasal drug use was the cause of the Veteran’s hepatitis C. In the instant case, rather than remand for yet another medical opinion, the Board will resolve reasonable doubt in favor of the Veteran and award service connection for the cause of the Veteran’s death. As noted in the Board’s January 2020 remand, the only confirmed risk factor exposures to blood in the record happened in service. Overall, given the Veteran’s hospitalization while in service and the VA’s inability to provide an adequate medical opinion, the Board finds that entitlement to service connection for the cause of the Veteran’s death is warranted. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals J. Morgan, Attorney for the Board Department of Veterans Affairs 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.