Citation Nr: 1144474 Decision Date: 12/06/11 Archive Date: 12/14/11 DOCKET NO. 09-13 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for the cause of the Veteran's death, and, if so, whether service connection for the cause of the Veteran's death is warranted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1967. He died in October 2003. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In March 2011, the appellant testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder. In July 2011, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). In August 2011, the appellant was provided a copy of the VHA opinion, and afforded a 60-day period of time to present additional evidence and/or argument. In October 2011, the appellant submitted additional evidence and waived RO consideration of that evidence in the first instance. FINDINGS OF FACT 1. The evidence added to the record since a final August 2005 RO rating decision denying service connection for the cause of the Veteran's death is new and material as it includes previously unconsidered medical treatise articles and lay testimony identifying the circumstances of the Veteran's tour of duty in the Republic of Vietnam as involving potential risk factors for cholangiocarcinoma, which caused the Veteran's death. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran is deemed to have been likely exposed to the liver fluke parasite while serving in the Republic of Vietnam during the Vietnam Era. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran's death due to cholangiocarcinoma in October 2003 is deemed attributable to exposure to the liver fluke parasite. CONCLUSIONS OF LAW 1. Evidence received since the RO's August 2005 rating decision is new and material; the claim of service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. §§ 1110, 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 2. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant seeks service connection for the cause of the Veteran's death - cholangiocarcinoma. She raises several service connection theories. One theory raised is that the Veteran, while serving in the Republic of Vietnam during the Vietnam War, ingested a food-borne parasite known to be endemic in Southeast Asia. According to several medical journal abstracts, infection by liver flukes cause chronic inflammation which is known over time to damage the cells of the bile duct of the liver and to cause the development of cancer. A second theory is that the Veteran's episode of infectious hepatitis during active service was actually a hepatitis C infection, which is also known as a risk factor for cholangiocarcinoma. A third theory is that the Veteran's cholangiocarcinoma is related to his Agent Orange exposure in service (the Veteran's herbicide exposure being an underlying fact that legally may be presumed based on his service in the Republic of Vietnam, under 38 U.S.C.A. § 1116). As addressed more fully below, the Board reopens a prior final denial of this claim, and grants the claim in full. As the claim is fully resolved in the appellant's favor, the Board need not address all theories of potential entitlement or all of the evidence of record. See generally Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Dependency and Indemnity Compensation (DIC) may be awarded to a Veteran's spouse for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110. A service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The RO has determined that the new and material standard applies to the case due to a prior final denial. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Rowell v. Principi, 4 Vet. App. 9, 15 (1993); Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). Prior to the decision on appeal, a March 2004 RO rating decision denied service connection for the cause of the Veteran's death on the basis that the cause of the Veteran's death, cholangiocarcinoma, first manifested many years after service and was not shown to be causally related to service or proximately due to service-connected disability. By letter dated March 22, 2004, the RO informed the appellant of the decision and her appellate rights. As the appellant did not submit a timely appeal or new and material evidence within one year of notice of the decision, the March 2004 RO rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. Additionally, an August 2005 RO rating decision denied an application to reopen the claim of service connection for the cause of the Veteran's death on the basis that new and material evidence had not been presented to reopen the claim. By letter dated August 9, 2005, the RO informed the appellant of the decision and her appellate rights. That claim became final as the appellant did not submit a timely appeal, or new and material evidence, within one year of notice of the decision. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. The appellant filed her application to reopen currently on appeal in February 2008. As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). However, if the claimant can thereafter present new and material evidence, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108. For purposes of this decision, new evidence means existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a); see also 66 Fed. Reg. 45620 (Aug. 29, 2001). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening, evidence is presumed credible unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence relied upon in reopening the claim must be both new and material. Smith v. West, 12 Vet. App. 312 (1999). Evidence of record at the time of the RO's August 2005 rating decision included the Veteran's death certificate, which indicated that he died in October 2003 with an immediate cause of death identified as adenocarcinoma of the liver. No contributing causes of death were identified. An autopsy was not performed. The remainder of the record showed that the Veteran was treated for infectious hepatitis during active service. During his lifetime, the Veteran had been service-connected for posttraumatic stress disorder (PTSD), type II diabetes mellitus, peripheral neuropathy of the upper and lower extremities, lichen simplex, tinea pedis and erectile dysfunction. His cholangiocarcinoma was first diagnosed just prior to his death. There was no competent evidence linking the cause of the Veteran's death to his active service, or as being proximately due to service-connected disability. Evidence of record since the RO's August 2005 rating decision includes several medical treatise articles and testimony from the appellant. An article from The Cholangiocarcinoma Foundation explains that cholangiocarcinoma arises from the bile duct. It is noted that adenocarcinoma and cholangiocarcinoma are similar terms for the same disorder. Primary cholangiocarcinoma is described as a "rare" disease which is more common in Asia and the Middle East due to a liver fluke parasite that infected the bile duct and caused cancer to form. Additionally, a technical medical article entitled Epidemiology of cholangiocarcinoma: An update focusing on risk factors, also describes cholangiocarcinoma as a relatively rare disease which is more prevalent in Eastern Asia. The etiology of cholangiocarcinoma in Asian countries is mostly linked to infections with the liver flukes Clonorchis sinensis (C. sinensis) and Opisthorcis viverrini (O. viverrini), which are described as foodborne trematodes that chronically infect human bile ducts. The main risk factor for liver fluke infection is consumption of raw or undercooked freshwater fish. Additional risk factors include hepatitis B (HBV) and hepatitis C (HCV) infections. In conjunction with the medical articles, the appellant testified that the Veteran drank unsanitary water, which he mixed with Kool-Aid, while stationed in the Republic of Vietnam. The new evidence added to the record since the final August 2005 RO rating decision includes previously unconsidered medical treatise articles and lay testimony identifying the circumstances of the Veteran's tour of duty in the Republic of Vietnam as involving potential risk factors for cholangiocarcinoma, which caused the Veteran's death. In the context of the entire evidentiary record, the Board finds that such evidence constitutes new and material evidence sufficient to reopen the claim. With respect to the merits of this claim, an expert medical opinion from VHA found that it was unlikely that the cause of the Veteran's death, due to cholangiocarcinoma, was attributable to military service or service-connected disability. This examiner conceded that liver flukes causing cholangiocarcinoma were endemic in Vietnam, but indicated that the infection could only be acquired from ingestion of raw fish. The VHA examiner stated that it was unlikely that accidental exposure from drinking unsanitary water would result in a significant infection of liver parasites. At first glance, the opinion of the VHA examiner appears to provide evidence against this claim. However, this opinion essentially confirms the medical treatise assertions that liver flukes endemic in Vietnam are known to cause cholangiocarcinoma. This examiner premised the negative opinion on the assumption that the Veteran had never ingested raw fresh water fish while serving in Vietnam. This opinion would be favorable to this claim if the Veteran, in fact, ingested contaminated fresh water fish. As reflected in the medical treatise articles, the river fluke parasite can be transmitted by raw or undercooked freshwater fish. Many years prior to being diagnosed with cholangiocarcinoma, the Veteran referenced drinking beer rather than water in Vietnam due to unsanitary water conditions. See Veteran's statement received September 1990; private examination report dated September 1999. Additionally, the Veteran identified fishing as a recreational exercise, which increases the likelihood that he ate fish as part of his diet. See private clinical record dated August 1999. Upon consideration of the foregoing, and after affording the Veteran the benefit of the doubt, the Board finds that the criteria for service connection for the cause of the Veteran's death have been met. Here, the record reflects that the Veteran served for over one year in Vietnam. This tour of duty involved treatment for infectious hepatitis of unknown cause. It is likely that the Veteran had a hepatitis A infection, according to the VHA examiner. Although the service records do not directly document exposure to river liver flukes, the Board finds that a reasonable inference can be drawn that the Veteran consumed local raw or uncooked fish at some point during one year tour of duty in Vietnam. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is deemed to have been likely exposed to the liver fluke parasite while serving in the Republic of Vietnam during the Vietnam Era. Resolving additional reasonable doubt in favor of the Veteran, the Board finds that the Veteran's death due to cholangiocarcinoma in October 2003 is deemed attributable to exposure to the liver fluke parasite. Given the foregoing, the elements for the grant of service connection for the cause of the Veteran's death have been met. Accordingly, the claim is granted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER The claim of entitlement to service connection for the cause of the Veteran's death is reopened and granted on the merits. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs