Citation Nr: 21026489 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-06 316 DATE: May 3, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) to include entitlement to service connection for the cause of the Veteran's death, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1974 to December 1981. The Veteran died in July 2013 and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the December 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for the cause of the Veteran's death, death pension and accrued benefits. The Appellant's Notice of Disagreement (NOD) was received in July 2015. In April 2018, the RO granted nonservice-connected death pension benefits. The Statement of the Case addressing the claim of entitlement to service connection for the cause of the Veteran's death issued in August 2016, and the Appellant's VA Form 9, substantive appeal to the Board was received in October 2016. The Appellant and her representative were scheduled to appear for a Board hearing in October 2019. However, she did not appear. A review of the claims file reveals that several correspondences, including the October 2019 hearing notice, were returned as undeliverable to the Appellant's current address of record. There is no evidence suggesting that the Appellant's representative did not receive the notice. While the Appellant has not provided a new mailing address, the RO is requested to undertake all reasonable attempts to confirm her mailing address (as discussed in below). Entitlement to DIC to include service connection for the cause of the Veteran's death. The Appellant contends that the Veteran's death is related to his service. The Veteran died in July 2013. At the time of his death, he did not have any service-connected disabilities. The Veteran's Certificate of Death lists the immediate cause of death as fulminant hepatic failure (onset 1 week), due to, or as a consequence of: hepatocellular carcinoma (onset 6 months), due to, or as a consequence of: hepatitis C (onset multiple years). There were no other significant conditions contributing to death. The Veteran's service treatment records (STRs) indicate that he was treated at Camp Lejeune, North Carolina in July 1981. Effective March 14, 2017, VA regulations regarding presumptive diseases were amended to add diseases associated with contaminants present in the water supply at U.S. Marine Base Camp Lejeune, North Carolina, from August 1, 1953 to December 31, 1987. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. Contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at Untied States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(ii)(7)(i). A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed ot have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(ii)(7)(iii). Under 38 C.F.R. § 3.309(f), the following diseases are presumed to be due to the contaminated water supply at Camp Lejeune from August 1, 1953 to December 31, 1987 for a veteran, or former reservist or member of the National Guard if the exposure meets the requirements of 38 C.F.R. § 3.307(a)(ii)(7)(iii) : kidney cancer, liver cancer, bladder cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, and aplastic anemia and other myelodysplastic syndromes. As the Veteran's cause of death was hepatocellular carcinoma, and there is an indication that he was at Camp Lejeune, for at least part of his service, service connection for the cause of the Veteran's death may be established on a presumptive basis for liver cancer. 38 C.F.R. § 3.307. In this case, the Veteran's STRs indicate that he was treated at Camp Lejeune one time in July 1981. Based on this single notation, it is unclear whether he had 30 consecutive or non-consecutive days of service at Camp Lejeune. The Veteran's service personnel records have not been associated with the claims file. Thus, it is not possible to ascertain whether the Veteran had qualifying service and is presumed to have been exposed to contaminated drinking water at Camp Lejeune in service pursuant to 38 C.F.R. § 3.307. Accordingly, a remand is necessary to obtain the Veteran's complete service personnel records to ascertain whether he had requisite 30 day consecutive or non-consecutive service at Camp Lejeune. Moreover, the Veteran's death certificate shows hepatitis C as an immediate cause of death, with an onset several years prior to his liver cancer. This suggests that even though the Veteran may have been exposed to contaminated water at Camp Lejeune, his liver cancer may have originated as a result of contracting hepatitis C. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. In other words, a diagnosis of hepatitis C suggests that the origin of the Veteran's liver cancer is not potential exposure to contaminated drinking water and is instead hepatitis C. The presumption afforded in 38 C.F.R. § 3.307 may be rebutted by affirmative evidence to the contrary. As such, in the event that the Veteran's liver cancer was caused by his hepatitis C, the presumption that the Veteran's liver cancer was caused by exposure to contaminated water will have been rebutted. That notwithstanding, it is also unclear whether the Veteran's hepatitis C had its onset during service, which raises the question of direct service connection. Accordingly, a VA medical opinion is necessary to establish the etiology of the Veteran's liver cancer and provide a complete nexus opinion. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See 38 U.S.C. § 5103A (a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Additionally, the Veteran's post-discharge medical records have not been associated with the claims file. The RO is requested to obtain all outstanding VA treatment and private treatment records and associate them with the Appellant's file. Finally, a review of the Appellant's file reveals that several correspondences have been returned as undeliverable to the Appellant. While the Appellant has not provided a new mailing address, the RO should attempt to locate her, if possible. These matters are REMANDED for the following action: 1. Attempt to obtain a current address for the appellant. 2. Obtain the Veteran's complete service personnel records to determine whether he had qualifying service at Camp Lejeune for purposes of presumptive service connection under 38 C.F.R. § 3.307. In the event all options have been exhausted and the personnel records are unavailable, a memorandum documenting all efforts to obtain the records with a formal finding of unavailability should be provided to the Appellant. 3. After determining whether the Veteran had qualifying service at Camp Lejeune under 38 C.F.R. § 3.307, obtain all outstanding VA treatment records and private treatment records and associate them with the claims file. 4. Obtain a posthumous VA medical opinion on the nature and etiology of the Veteran's liver cancer and hepatitis C, and any other related disability noted at the time of the Veteran's death. The claims file and a copy of this remand must be made available and reviewed by the examiner. The examiner is requested to opine: (a.) Whether it is at least as likely as not (50 percent or more probable), that the Veteran's hepatitis C first manifested in service or is otherwise related to any inservice injury or disease. (b.) Whether it is at least as likely as not that the Veteran's death-causing hepatocellular carcinoma was causally related to service, to include any in-service exposure to contaminated water at Camp Lejeune. (c.) Whether the Veteran's hepatocellular carcinoma is at least as likely as not caused by his hepatitis C. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner is requested to provide a complete rationale, with consideration of both the lay and medical evidence of record. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.