Citation Nr: 0809987	
Decision Date: 03/26/08    Archive Date: 04/09/08

DOCKET NO.  06-12 519	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUE

Entitlement to accrued benefits based upon service connection 
for cholangiocarcinoma as a result of exposure to herbicides.


ATTORNEY FOR THE BOARD

S. Layton, Associate Counsel


INTRODUCTION

The veteran served on active duty in the military from 
September 1966 to February 1978.  He died in September 2004.  
The appellant is his widow.  She appealed to the Board of 
Veterans' Appeals (Board) from a June 2005 decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Roanoke, Virginia.  The Board notes that by a separate rating 
decision in February 2005, the appellant was awarded service 
connection for the cause of the veteran's death.


FINDINGS OF FACT

1.  The veteran died in September 2004.

2.  The evidence of record demonstrates the veteran's 
cholangiocarcinoma was not a result of any established event, 
injury, or disease during active service.


CONCLUSION OF LAW

The criteria for service connection for cholangiocarcinoma 
for accrued benefit purposes are not met.  38 U.S.C.A. §§ 
1112, 1113, 1110, 1131, 1137, 5121 (West 2002); 38 C.F.R. §§ 
3.303, 3.307, 3.309, 3.1000 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA and implementing regulations impose obligations on 
VA to provide claimants with notice and assistance.  38 
U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).

Pursuant to the VCAA, upon receipt of complete or 
substantially complete application for benefits, and prior to 
an initial unfavorable decision, VA must: (1) inform the 
claimant about the information and evidence not of record 
that is necessary to substantiate the claim; (2) inform the 
claimant about the information and evidence that VA will seek 
to provide; (3) inform the claimant about the information and 
evidence the claimant is expected to provide; and (4) request 
or tell the claimant to provide any evidence in the 
claimant's possession that pertains to the claim.  38 
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. 
Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II).

The appellant was sent a VCAA notice letter in March 2005.  
The letter provided her with notice of the evidence necessary 
to substantiate her claim, the evidence VA would assist her 
in obtaining, and the evidence it was expected that she would 
provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 
(2002); Charles v. Principi, 16 Vet. App. 370 (2002).  The 
letter also specifically requested that she submit any 
evidence in her possession pertaining to her claims. Thus, 
the content of the letter provided satisfactory VCAA notice 
in accordance with § 5103(a) and § 3.159(b)(1) as specified 
in Pelegrini II.

In developing her claims, VA obtained the veteran's service 
medical records (SMRs), VA treatment records, private medical 
records, and a copy of the death certificate.  The appellant 
also submitted several articles.  There is no reported 
evidence that has not been obtained.

No further development is required to comply with the 
provisions of the VCAA or the implementing regulations.  
Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). 
Accordingly, the Board will address the merits of the claims.

Governing Statutes and Regulations

The law applicable to accrued benefits provides that certain 
individuals may be paid periodic monetary benefits (due and 
unpaid for a period not to exceed two years) to which the 
veteran was entitled at the time of his death under existing 
ratings or based on evidence in the file or constructively of 
record at the time of his death.  38 U.S.C.A. § 5121(a); 38 
C.F.R. § 3.1000.  A claim for such benefits must be filed 
within one year of the veteran's death.  38 U.S.C.A. § 
5121(c); 38 C.F.R. § 3.1000(c).

Under the applicable criteria, service connection may be 
granted for disability resulting from disease or injury 
incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 
1131; 38 C.F.R. § 3.303.  Such a determination requires a 
finding of a current disability that is related to an injury 
or disease incurred in service.  Rabideau v. Derwinski, 2 
Vet. App. 141, 143 (1992).  Service connection may be granted 
for any disease diagnosed after discharge, when all of the 
evidence, including that pertinent to service, establishes 
that the disease was incurred in service.  38 C.F.R. § 
3.303(d).

Presumptive service connection is available for certain 
chronic diseases (to include a malignant tumor) manifest to a 
certain degree (10 percent for malignant tumors) within a 
prescribed period after the date of termination of such 
service (one year for malignant tumors), even though there is 
no evidence of such disease during the period of service.  
This presumption is rebuttable by affirmative evidence to the 
contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 
3.307, 3.309.

In addition, if a veteran was exposed to an herbicide agent 
during service, the following diseases are presumed service-
connected even if there is no record of such disease during 
service, provided that the requirements of 38 C.F.R. 
§ 3.307(a)(6)(ii) and 38 C.F.R. § 3.307(d) regarding the time 
in which the disabilities must manifest and the rebuttal of 
the presumption are also satisfied: chloracne, Hodgkin's 
disease, multiple myeloma, non-Hodgkin's lymphoma, chronic 
lymphocytic leukemia, diabetes, acute and subacute peripheral 
neuropathy, porphyria cutanea tarda, prostate cancer, 
respiratory cancers, and soft-tissue carcinomas. 38 C.F.R. § 
3.309(e) (2007).

However, even if an appellant is found not entitled to a 
regulatory presumption of service connection, the claim must 
still be reviewed to determine if service connection can be 
established on a direct basis.  See Combee v. Brown, 34 F.3d 
1039 (Fed Cir. 1994).

Legal Analysis

In April 2004, the veteran submitted a claim for service 
connection for cholangiocarcinoma as a result of exposure to 
herbicides.  Unfortunately, the veteran died in 
September 2004.  The veteran's spouse claims entitlement to 
the veteran's accrued benefits.

The veteran's service records show that he served in the 
Republic of Vietnam.  The service treatment records are 
negative for any signs, symptoms, or treatment for 
cholangiocarcinoma.

In March 2004, the veteran was hospitalized at a private 
facility.  An abdominal ultrasonogram revealed a slightly 
dilated part of the gallbladder and a dilated bile duct.  It 
was noted that the underlying cause of the abnormalities was 
not clear.  A computed tomography (CT) scan showed dilation 
of the bile duct and distention of the gallbladder.  The 
examiner stated that it was an obstructive-type of dilation 
of the bile duct, and the underlying cause was not clear.

VA treatment notes from April 2004 indicated that the veteran 
had a questionable liver lesion that required a biopsy.  A CT 
scan showed a mild to moderate degree of diffuse intrahepatic 
biliary ductal dilation and prominence of the pancreatic 
head.  After undergoing an exploratory palarotomy and 
coleotomy, the veteran was given a clinical diagnosis of 
metastatic cholangiocarcinoma.  The examiner was unable to 
obtain a tissue diagnosis.

An undated statement from M.E., M.D., stated that the veteran 
had "a clinical diagnosis of unresectable 
cholangiocarcinoma.  It is my medical opinion that this 
condition is related to Herbicide exposure.  Thank you."

Based on the evidence of record, the Board finds that the 
veteran's cholangiocarcinoma was not a result of any 
established event, injury, or disease during active service.  
The record contains no basis upon which direct service 
connection for cholangiocarcinoma can be established.  The 
veteran reported no symptoms or treatment for 
cholangiocarcinoma during active service.  According to the 
claims file, the veteran's first symptoms of 
cholangiocarcinoma appeared in 2004-26 years after he left 
active duty.  The passage of many years between discharge 
from active service and the medical documentation of a 
claimed disability may be considered evidence against a claim 
of service connection.  Maxson v. Gober, 230 F.3d 1330, 1333 
(Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992).

As the veteran performed active duty in Vietnam in 1970 and 
1971, his exposure to herbicides is conceded.  The Board 
observes that the statement by Dr. M.E. said that the veteran 
had cholangiocarcinoma that related to his exposure to 
herbicides.  However, Dr. M.E. did not review the veteran's 
service treatment records or the claims file.  He did not 
mention any observations he had made of the veteran.  No test 
results were given.  He did not discuss any medical treatises 
that would support his statement.  The Board finds the 
undated statement from Dr. M.E. of less persuasive value 
because he provided no reasons or bases for his opinion.

In its report, "Veterans and Agent Orange: Update 2004" 
(Update 2004), the National Academy of Sciences (NAS) 
concluded that there was "limited or suggestive evidence of 
no association" between exposure to herbicides and 
gastrointestinal tumors (to include esophagus, stomach, 
pancreas, colon, rectum).  It was further noted that the 
Secretary had determined "that the credible evidence against 
an association between herbicide exposure and 
gastrointestinal tract tumors outweighs the credible evidence 
for such an association, and [ ] determined that a positive 
association does not exist." (quoting Diseases Not 
Associated With Exposure to Certain Herbicide Agents, 72 Fed. 
Reg. 32395, 32406 (June 12, 2007)).  Id.  The Board finds the 
NAS report persuasive as it was drafted by scientists who 
specialize in the specific area of medicine at issue, so they 
have the esoteric knowledge and expertise required to make 
this necessary determination.  Cf. Black v. Brown, 10 Vet. 
App. 279 (1997).  See also Guerrieri v. Brown, 4 Vet. App. 
467, 470-71 (1993)..

Without competent medical evidence of a nexus between a 
presently demonstrated disability and an event in service, 
service connection cannot be granted on a direct basis.  In 
addition, service connection for cholangiocarcinoma cannot be 
established on a presumptive basis as cholangiocarcinoma is 
not on the statutory list of diseases for which service 
connection can be presumed due to exposure to herbicides.  
See 38 C.F.R. § 3.309(e).  Also, service connection for 
cholangiocarcinoma cannot be established on a presumptive 
basis as the evidence of record does not demonstrate that 
malignant tumors were present to a compensable level within 
one year of the veteran's discharge from active duty.  See 
38 C.F.R. §§ 3.307, 3.309(a).

In this case, the veteran filed a claim for service 
connection for cholangiocarcinoma in April 2004, a few months 
before he died.  The appellant filed a timely claim for 
accrued benefits in October 2004.  As discussed in detail 
above, the veteran was not entitled to service connection for 
cholangiocarcinoma at the time of his death.  Therefore, the 
claim for accrued benefits must also be denied.

The Board observes that after the veteran's death, the 
appellant submitted numerous articles concerning herbicides.  
Unfortunately, in determining eligibility to any benefits the 
veteran was entitled to at his death, the Board can only 
consider the evidence that was in the claims file at the time 
of his death.  See 38 C.F.R. § 3.1000.  Thus, the articles 
could not be considered by the Board.

The appellant has also claimed that she is entitled to 
accrued benefits based on the veteran's other cancers and/or 
diseases.  She said that his entire endocrine system was 
affected.  Unfortunately, accrued benefits can only be 
awarded for benefits the veteran was entitled to at his 
death, and to be entitled to benefits, the veteran must have 
submitted a claim for the specific disorder.  See 38 C.F.R. 
§ 3.151(a).  As the veteran did not have an open claim for 
service connection for any cancers or disabilities other than 
cholangiocarcinoma at the time of his death, there can be no 
accrued benefits available for any other disorder.  See 38 
C.F.R. § 3.1000.

For these reasons, the claim for accrued benefits must be 
denied because the preponderance of the evidence is 
unfavorable-meaning there is no reasonable doubt to resolve 
in the appellant' favor.  38 U.S.C.A. § 5107(b); Alemany v. 
Brown, 9 Vet. App. 518, 519 (1996).


ORDER

Entitlement to accrued benefits based upon service connection 
for cholangiocarcinoma as a result of exposure to herbicides 
is denied.



____________________________________________
JONATHAN B. KRAMER
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs