Citation Nr: 1227489 Decision Date: 08/09/12 Archive Date: 08/14/12 DOCKET NO. 09-37 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Dax J. Lonetto, Sr., Attorney at Law WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to January 1968. The Veteran died in November 2007. The Appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. The Appellant filed a notice of disagreement in July 2008. A statement of the case (SOC) was issued in September 2009 and the Appellant perfected her appeal the same month. The issues have been recharacterized as they appear on the cover page of the instant decision. The Appellant presented testimony before the Board in July 2011. The transcript has been associated with the claims folder. The Board requested a VHA opinion regarding the cause of death claim. The VHA opinion was prepared in December 2011. In March 2012, the Board notified the Appellant she had 60 days to respond to the VHA opinion and/or send additional evidence in support of her claim. On May 7, 2012, the Board received a letter from the Appellant's attorney indicating he contacted the VHA examiner via electronic mail and posed interrogatories. The attorney stated the VHA examiner was amenable to answering such questions, but needed proper authorization. The attorney then requested the Board forward a copy of the interrogatories to the VHA examiner along with the Appellant's consent form. The Board has considered this request but finds no basis for permitting interrogatories to the medical examiner. There is no VA regulatory authority for interrogatories, and it is stressed that the benefits system is non-adversarial in nature. The Board requested the VHA opinion pursuant to 38 C.F.R. § 20.901 (2011) after determining that such opinion was necessary to allow for equitable disposition of the appeal. Pursuant to 38 C.F.R. § 20.903, the Appellant was afforded 60 days to submit evidence and/or argument in response. There is no provision for interrogatories to the examiner. The Appellant's attorney responded in April 2012 with both argument and additional evidence in the form of Internet articles and copies of prior Board decisions in other similar appeals. Appellate review is therefore proper at this time. FINDINGS OF FACT 1. The Veteran died in November 2007; his death certificate lists the immediate cause of death to be cholangiocarcinoma of the gallbladder; there were no underlying causes. 2. The Veteran was not in receipt of compensation at the time of his death for any service-connected disability. 3. A disability of service origin did not produce or hasten the Veteran's death. 4. At the time of death, the Veteran had pending a claim of entitlement to service connection for cancer of the bile duct and gallbladder. 5. A thorough review of the evidence does not show the Veteran was entitled to the benefits he was seeking from VA at the time of his death. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2011). 2. Entitlement to accrued benefits is not warranted. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.152, 3.1000(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in December 2007 and February 2009 VCAA letters, the Appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The Appellant was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the RO provided VCAA notice to the Appellant in December 2007, which was prior to the April 2008 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Notice pursuant to the Dingess decision is rendered moot. In sum, the Appellant has received all essential notice, has had a meaningful opportunity to participate in the development of her claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principia, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment and personnel records, post-service VA and private treatment records, the Veteran's death certificate, the transcript from the July 2011 Board hearing, articles by the Appellant, statements of the Appellant, and VA opinions. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this issue and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Appellant waived initial RO review of evidence submitted after the September 2009 SOC was issued. As such, Remand is not necessary. 38 U.S.C.A. § 20.1304(c). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159(b), 20.1102 (2011); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background Service personnel records confirm the Veteran served in Korea between December 1966 and January 1968. The Veteran's service treatment records are negative for any complaints or treatment referable to liver fluke disease and/or gall bladder or bile duct disease. Post-service, in December 2006, the Veteran presented to the emergency room with epigastric symptoms. His physical examination was consistent with cholecystitis and an ultrasound showed a stone impacted in the neck. A laparoscopic cholecystectomy was performed. Pathology reports revealed adenocarcinoma of the gallbladder. The pericystic ductal lymph node was also positive for metastatic carcinoma. In March 2007, the Veteran underwent a bile duct excision with portal lymphadenectomy and en bloc segment resection including a partial duodenectomy, extra hepatic hepaticojecjunostomy and gastrojejunostomy. In October 2007, the Veteran was hospitalized at the Tampa VA Medical Center. He was discharged on October 22, 2007, with a terminal diagnosis of cholangiocarcinoma, status post excision and gastrojejunostomy, gastric outlet obstruction, peg-tube for gastric decompression, and naso-jejunal tube for feeding. The physician certified the Veteran's life expectancy was less than six months. He was to receive palliative care from Hospice. The Veteran expired in November 2007. The Veteran's death certificate lists the cause of death as cholangiocarcinoma of the gallbladder. There were no underlying causes listed. An autopsy was not performed. The Veteran was 62 at the time of his death. The Appellant has submitted articles suggesting there is a high prevalence of cholangiocarcinoma in Southeast Asia, including Korea, but low in the United States. These articles suggest that a variety of risk factors have been associated with choloangiocarcinoma, including chronic liver disease, primary sclerosing cholangitis, liver flukes, intrahepatic gallstones, congenital cystic dilatations of the biliary tree and choledochal cysts. Another article entitled "Parasite Warning" by the widow of a Veteran who died from cholangiocarcinoma suggests there are two known causes, hepatitis C and parasitic liver fluke infection. The Appellant argues that as the Veteran did not have hepatitis C, he must have contracted gall bladder cancer as a result of liver fluke infection. The Appellant submitted additional internet articles in May 2012. One was entitled "Liver Fluke Induces Cholangiocarcinoma." The article suggests such infection was common in rural areas of Korea and China. Infection was food-borne parasites, prevalent in uncooked fish. The other was "Bile Duct Cancer from Liver Fluke Infection." She argues these articles suggest a link between liver fluke and bile duct cancer, which were prevalent in Thailand, Laos, Vietnam, Cambodia, Korea, and China. She further contends that it was likely the Veteran ingested local cuisine, including raw fish, while stationed in Korea. She claims it was then likely he contracted the parasite since no other cause for his cancer has been established. In support of her claim, the Appellant submitted two opinions which suggest a possible relationship between the Veteran's gall bladder cancer and his service in Korea. A September 2007 statement from Dr. AM indicated that after learning the Veteran was stationed in Korea during service, his gall bladder cancer may have been the result of liver fluke, which he was possibly exposed to while in Korea. In a September 2007 statement, Dr. ELG indicated that gallbladder and bile duct cancer could be a result of liver fluke, which the Veteran more likely than not obtained while in service in Korea. In a September 2009 opinion, after reviewing the claims file (which included service and post-service records), a VA physician stated that the etiology of the Veteran's gallbladder cancer was unknown and was less likely than not related to his active service. The examiner reasoned there was no record of any fluke related disease or liver disease while the Veteran was in service. The examiner concluded the fact that the Veteran was stationed in Korea alone was not enough reason to associate his choloangiocarcinoma to liver fluke. The Board requested a VHA opinion, which was rendered in December 2011 by a board certified physician in Infectious Diseases and Internal Medicine. The physician reviewed the medical records and determined that there was no evidence the Veteran developed a parasitic infection as a result of his military service or that his alleged infection any way resulted in his death from gallbladder cancer. The physician reasoned that Southeast Asia was a region in which liver flukes were common and infection with these parasites was acquired by the consumption of raw fish or seafood. However, there were no documents presented that stated the Veteran ingested raw fish or seafood as a result of his service in Korea. She found no evidence of the Veteran being diagnosed or treated for a parasitic infection at any point during or after his military service until the time of his death. She noted diagnosis of the parasite was made by demonstrating the presence of eggs in the stool or the worms in the bile ducts and gallbladder. She found no stool exams documented in the medical records. There was also no evidence of treatment for a parasitic infection. The pathology reports in the medical records did not mention the presence of a parasite in any of the specimens taken from the Veteran's gallbladder, liver, lymph nodes or bile ducts. III. Analysis The Board has reviewed all the evidence in the Veteran's claims file and Virtual VA record (VA's electronic database storage). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Cause of Death According to VA law, when a veteran dies from a service-connected disability, VA shall pay dependency and indemnity compensation to such veteran's surviving spouse. 38 U.S.C.A. § 1310. Service connection may be established for a 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. Further, disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). 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; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). 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 Appellant, the Veteran's widow, through statements and testimony before the Board, contends that the Veteran's death from cholangiocarcinoma was the result of his active duty service. Specifically, she asserts that he contracted parasitic liver fluke-chlonorchis sinensis from an infected food source while he was stationed in Korea. She further asserts that the liver fluke caused his gallbladder and bile duct cancer and ultimately led to his death in November 2007. After a careful review of the evidence of record, the Board concludes that service connection is not warranted for the cause of the Veteran's death. In this regard, service connection was not in effect for any disease or disability at the time of the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). Nevertheless, she argues the Veteran's death from cholangiocarcinoma was the result of contracting parasitic liver fluke-chlonorchis sinensis from an infected food source while he was stationed in Korea. Unfortunately, the weight of the medical evidence is against a finding that the Veteran's death from cholangiocarcinoma was the result of an incident of active military service. The Board finds the September 2007 statements from Dr. AM (gall bladder cancer may have been the result of liver fluke) and Dr. ELG (gallbladder and bile duct cancer could be a result of liver fluke) to be of little probative value. The opinions stated "gall bladder cancer may have been the result of liver fluke" and "gallbladder and bile duct cancer could be a result of liver fluke" are little more than speculative as to whether there was any such involvement at all. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus). Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102. In contrast, the September 2009 VA opinion, found the etiology of the Veteran's gallbladder cancer was unknown and was less likely than not related to his active service as there was no record of any fluke related disease or liver disease while the Veteran was in service. This opinion was more probative as it was based on a complete and thorough review of the medical evidence of record, which included review of the service and post-service medical records. However, the most probative opinion is that of the December 2011 board certified physician in Infectious Diseases and Internal Medicine. The VA physician also reviewed the entire medical record (service and post-service). The physician determined that there was no evidence the Veteran developed a parasitic infection as a result of his military service or that his alleged infection any way resulted in his death from gallbladder cancer. She reasoned that there were no documents presented that the Veteran ingested raw fish or seafood as a result of his service in Korea. The Board notes the only recent statements concerning ingestion are that of the Appellant, which are considered self-serving. The VA physician found no evidence that the Veteran was diagnosed or treated for a parasitic infection at any point during or after his military service until the time of his death. She noted diagnosis of the parasite was made by demonstrating the presence of eggs in the stool or the worms in the bile ducts and gallbladder. She found no stool exams documented in the medical records or evidence of treatment for a parasitic infection. The pathology reports in the medical records did not mention the presence of a parasite in any of the specimens taken from the Veteran's gallbladder, liver, lymph nodes or bile ducts. Thus, based on the aforementioned, the Board has afforded more weight to the opinion of the September 2009 VA and December 2011 VHA examiners. As a final matter, the Board notes that the Appellant has also provided medical treatise evidence in support of her claim, i.e. excerpts from articles summarized above. These articles are general in nature in that they do not specifically refer to this Veteran. Sacks v. West, 11 Vet. App. 314, 317 (1998)(citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Wallin v. West, 11 Vet. App. 509 (1998). While medical treatise evidence can provide important support when combined with an opinion of a medical professional, in the instant case, as discussed above, the Board finds the medical literature to be general in nature and not specific to the Veteran in this case. As already discussed the Board finds the medical opinions of Dr. AM and Dr ELG to be speculative. Therefore, combining the medical literature submitted by the Appellant with these two medical opinions does not persuasively support the Appellant's claim. The Board has also considered the other Board decisions submitted by the Appellant, but it is stressed that each Board decision is based on the facts and circumstances of each individual case. 38 C.F.R. § 20.1303. That there may have been persuasive evidence in one VA claimant's appeal does not mean there is persuasive evidence in every case involving the same or similar issue. In sum, the Appellant has not provided persuasive medical evidence supporting the premise that the Veteran's death from cholangiocarcinoma was the result of contracting parasitic liver fluke-chlonorchis sinensis during service. The Board acknowledges the Veteran's service to his country and is sympathetic to the Appellant's loss; however, the Board must apply the law as it exists, and the Board is bound by the laws codified in Title 38 of the United States Code and Code of Federal Regulations, which govern dependents' benefits administered by the Secretary of VA. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (the Board must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant]'," quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992)). Thus, the Appellant's request that she be granted service connection for the cause of the Veteran's death must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accrued Benefits A claim by a surviving spouse for DIC will also be considered to be a claim for accrued benefits. 38 C.F.R. § 3.152(b). Accrued benefits are defined as "periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid for a period not to exceed two years." See 38 U.S.C.A. § 5121; 38 C.F.R. 3.1000(a). Accrued benefits may be paid upon the death of a Veteran to his or her spouse. 38 C.F.R. § 3.1000(a)(1)(i). The entitlement of the accrued benefits claimant is derived from the Veteran's entitlement, and the accrued benefits claimant cannot be entitled to a greater benefit than the Veteran would have received had he lived. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). The Board notes that the statute was amended in January 2003 to eliminate the two-year restriction on the payment of accrued benefits. The revision to the statute, however, applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See the Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Because the Veteran's death occurred in November 2007, the Appellant's claim must be considered under the version of 38 U.S.C.A. § 5121(a) currently in effect, which eliminates the two-year restriction on the payment of accrued benefits.. The record reflects that the Veteran died in November 2007. Service connection had not been established for any disability at the time of his death. However, the Veteran filed a claim of entitlement to service connection for bile duct and gallbladder cancer in August 2007. Specifically, he contended that his cancer was the result of exposure to parasites while stationed in Korea. This matter was not adjudicated prior to the Veteran's death. Service connection may be established for a 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board has reviewed all the evidence delineated at the outset of the instant decision and finds that service-connection for cancer of the gallbladder and parasitic liver fluke-chlonorchis sinensis is also denied. As previously determined, the preponderance of the evidence is against a finding that the Veteran was exposed to parasitic liver fluke-chlonorchis sinensis during his period of active duty service. His service treatment records fail to demonstrate the existence of a chronic disability attributable to such exposure, including the claimed bile duct and gallbladder cancer. While the Veteran was diagnosed with cholangiocarcinoma after service, the preponderance of the medical evidence, as previously discussed, is against a finding that it was the result of contracting parasitic liver fluke-chlonorchis sinensis during service. Notably, the opinions of the September 2009 VA and December 2011 VHA examiners that the medical evidence was against a finding that the Veteran developed a parasitic infection as a result of his military service or that his alleged infection any way resulted in his death from gallbladder cancer, have been found to be more probative than the September 2007 opinions of Dr. AM and Dr. ELG that gallbladder and bile duct cancer could be a result of liver fluke. For the reasons stated above, the Board finds that the evidence is against the claim the Veteran had pending at the time of his death, and, as such, the benefit of the doubt doctrine is not for application in the instant case. Gilbert, 1 Vet. App. at 54. Consequently, there is no basis to award accrued benefits to the Appellant as there were no benefits that were due and unpaid to the Veteran at the time of his death. ORDER Entitlement to service connection for the cause of the Veteran's death is not warranted. Entitlement to accrued benefits is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs