Veterans Claims Help

DOCKET NO. 07-28 112         )         DATE
)

On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York

THE ISSUES

1. Entitlement to service connection for hepatitis C.

2. Entitlement to service connection for major depressive
disorder as secondary to hepatitis C.

REPRESENTATION

Appellant represented by:         Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

M. Riley, Associate Counsel

INTRODUCTION

The veteran served on active duty from November 2004 to
October 2005 and died in September 2008. This case comes
before the Board of Veterans’ Appeals (Board) on appeal from
a January 2007 rating decision issued by the Department of
Veterans Affairs (VA) Regional Office (RO) in New York, New
York, which, in pertinent part, denied entitlement to service
connection for hepatitis C and depression.

FINDINGS OF FACT

1. The veteran in this case served on active duty from
November 2004 to October 2005.

2. On October 30, 2008, the Board was notified by the
veteran’s representative, Paralyzed Veterans of America
(PVA), that the veteran died in September 2008.

CONCLUSION OF LAW

Due to the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of these claims at this
time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302
(2008); but see Veterans’ Benefits Improvement Act of 2008,
Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the veteran died during the pendency of the
appeal. As a matter of law, appellants’ claims do not
survive their deaths. Zevalkink v. Brown, 102 F.3d 1236,
1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330,
333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).
This appeal on the merits has become moot by virtue of the
death of the veteran and must be dismissed for lack of
jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2002); 38
C.F.R. § 20.1302 (2008).

In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran. 38 C.F.R.
§ 20.1106 (2008).

ORDER

The appeal is dismissed.

K. L. Wallin
Acting Veterans Law Judge
Board of Veterans’ Appeals

DOCKET NO. 06-27 720         )         DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUE

Entitlement to service connection for the cause of the
veteran’s death.

REPRESENTATION

Appellant represented by:         Oregon Department of Veterans’
Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel

INTRODUCTION

The veteran served on active duty from September 1968 to
January 1971. He passed away in June 2004, and the appellant
is his surviving spouse.

This matter came to the Board of Veterans’ Appeals (Board) on
appeal from a December 2004 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon.

In September 2007, the appellant testified at a travel board
hearing at the RO before the undersigned Veterans Law Judge.
A transcript of that hearing has been associated with the
claims folders.

FINDINGS OF FACT

1. The veteran died in June 2004, at age 53; the immediate
cause of death was listed as cirrhoses of the liver, due to
hepatitis C infection; hepatic encephalopathy and
hypertension were identified as significant conditions
contributing to his death.

2. Resolving all reasonable doubt in the appellant’s favor,
the veteran’s hepatitis C has been etiologically linked to
his service.

CONCLUSION OF LAW

The criteria for service connection for the cause of the
veteran’s death are met. 38 U.S.C.A. § 1310 (West 2002); 38
C.F.R. § 3.312 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA’s Duties To Notify And Assist

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held, in
part, that a Veterans Claims Assistance Act of 2000 (VCAA)
notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable RO
decision on a claim for Department of Veterans Affairs (VA)
benefits.

The Board has considered the appellant’s claim with respect
to VA’s duties to notify and assist a claimant. The Board
finds that the VA letter dated in October 2004 fully
satisfied VA’s duty to notify the veteran, and that any
defect with respect to the timing of the receipt of the
notice requirements is harmless error in the case. 38
U.S.C.A. §§ 5100 et. seq. (West 2002). Moreover, given the
favorable outcome noted below, no conceivable prejudice to
the appellant could result from this adjudication. See
Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Thus, the
additional delay in the adjudication of this issue, which
would result from a remand solely to allow the RO to apply
the applicable notification and assistance duties, would not
be justified.

Analysis

To establish service connection for the cause of a veteran’s
death, the evidence must show that a disability incurred in
or aggravated by service either caused or contributed
substantially or materially to death. 38 U.S.C.A. § 1310; 38
C.F.R. § 3.312.

For a service-connected disability to be the primary cause of
death, it must singly or with some other condition be the
immediate or underlying cause, or be etiologically related.
38 C.F.R. § 3.312(b).

Contributory cause of death is inherently one not related to
the principal cause. In determining whether the service-
connected disability contributed to death, it must be shown
that it contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that
it causally shared in producing death, but rather it must be
shown that there was a causal connection. 38 C.F.R.
§ 3.312(c).

The June 2004 death certificate shows that the immediate
cause of the veteran’s death was cirrhosis of the liver with
the underlying cause listed as hepatitis C. Hepatic
encephalopathy and hypertension were listed as other
significant conditions contributing to death but not
resulting in the underlying cause.

After carefully reviewing the evidence of, and resolving all
reasonable doubt in the appellant’s favor, the Board finds
that service connection is warranted for the cause of the
veteran’s death. The veteran’s service medical records show
he received a blood transfusion in 1969 following an injury.
Medical evidence of record indicates he received another
blood transfusion after his discharge in 1972 for an
unrelated injury. The evidence also indicates that he
frequently gave histories of having been an IV drug user and
that he also had tattoos. Although hepatitis was initially
suspected in April 1989, the evidence is unclear as to when
the veteran was initially diagnosed with hepatitis C. In
June 2006, a VA nurse practitioner, after reviewing the
veteran’s claims file, opined that it could be as likely as
not that the veteran contracted his hepatitis C infection
from his in-service blood transfusion. The nurse
practitioner further opined that it was more likely that his
IV drug use was a more significant risk factor for his
contracting hepatitis C, but that the in-service blood
transfusion could not be excluded as the source of the
veteran’s contraction of the disease. There are no other
medical opinions of record addressing the etiology of the
veteran’s hepatitis C. In light of the foregoing, and
resolving all reasonable doubt in the appellant’s favor, the
Board finds that service connection is warranted.

ORDER

Service connection for the cause of the veteran’s death is
granted.

____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans’ Appeals

I commend VLJ Kathleen K. Gallagher for a magnanimous decision in this case. Many Justices would find that one niggling piece of evidence such as the Nurse’s nexus and make life miserable for the widow. She did not. There is some humanity still left at the BVA in spite of what one hears. This is proof. Unfortunately this is the exception to the rule.