Citation Nr: 1237152 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-13 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for mixed hepatocellular carcinoma/ cholangiocarcinoma for purposes of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to February 1972. He died in October 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. In July 2012, the Board sought an opinion from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901. Pursuant to this request, the Board received a VHA opinion in September 2012, and it is associated with the claims file. The case is now ripe for appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's mixed hepatocellular carcinoma/cholangiocarcinoma was at least as likely as not caused by herbicide exposure during his active military service. 2. The Veteran died in October 2007. The death certificate lists the immediate cause of death as bile duct cancer (cholangiocarcinoma), with an underlying cause (disease or injury that initiated the events resulting in death) being an environmental cause - Agent Orange. 3. At the time of the Veteran's death, he was not service connected for any disabilities, but a claim for entitlement to service connection for mixed hepatocellular carcinoma/cholangiocarcinoma was pending. 4. The preponderance of the evidence establishes that a service connected disability was either the principal or a contributory cause of the Veteran's death. CONCLUSIONS OF LAW 1. Service connection for mixed hepatocellular carcinoma/cholangiocarcinoma is established for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.1000 (2011). 2. A disability incurred or aggravated in active service caused or substantially or materially contributed to the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Accrued Benefits The appellant is seeking entitlement to service connection for mixed hepatocellular carcinoma/cholangiocarcinoma for accrued benefit purposes. The appellant maintains that the Veteran's liver/bile duct cancer was caused by his active military service, specifically by exposure to Agent Orange and other herbicides in the Republic of Vietnam. Accrued benefits are benefits to which a veteran was entitled at his death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2011). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. §§ 5121, 5101(a) (West 2002); 38 C.F.R. § 3.1000 (2011); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The substance of the survivor's claim is purely derivative from any benefit to which the veteran might have been entitled at his death; that is, the survivor cannot receive any benefit that the veteran could not have received. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). In considering the appellant's claim for accrued benefits, generally, only evidence contained in the claims file at the time of the veteran's death is evaluated. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. However, in Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the Court of Appeals for Veterans' Claims (Court) held that service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the claims file until after that date. The pertinent provisions refer to service department records, reports of VA hospitalizations, reports of treatment by VA medical centers, reports of treatment authorized by the VA, and reports of autopsy made by VA on date of death. The Veteran died in October 2007. At the time of his death, a claim was pending to determine whether entitlement to service connection for mixed hepatocellular carcinoma/ cholangiocarcinoma was warranted. In December 2007, the appellant, who is the Veteran's surviving spouse, filed a claim for accrued benefits. As the appellant has standing to file a claim for accrued benefits, because the Veteran had a claim pending at the time of death, and the claim for accrued benefits was filed within one year of the Veteran's death, the only issue is whether the Veteran would have prevailed on the claim if he had not, unfortunately, died. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Certain chronic diseases, include malignant tumor (cancer), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2011). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 39 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011). Even if the claimed disability is not on the list of diseases subject to presumptive service connection due to exposure to an herbicide agent, service connection may be established by proof that the claimed disability was actually caused by exposure to an herbicide agent during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the service treatment records and service personnel records show that the Veteran served in the Republic of Vietnam during the Vietnam War; however, neither mixed hepatocellular carcinoma nor cholangiocarcinoma is one of the disabilities listed in 38 C.F.R. § 3.309(e) and the Veteran was not diagnosed with liver or bile duct cancer within one year of service. Thus, service connection cannot be granted on a presumptive basis. As such, service connection can only be established with proof of actual direct causation. See Combee, supra. In support of his claim, the Veteran submitted a private medical statement from W.R.H., M.D., Division of Surgery, Department of Transplantation, Mayo Clinic, dated in December 2006. In the statement, Dr. H. indicated that he had been treating the Veteran for multifocal primary liver cancer. Dr. H. opined that it was possible that if the Veteran had exposure to Agent Orange, "50/50 mix of two herbicides, 2, 4-D (2, 4 dichlorophenoxyacetic acid) and 2, 3, 5-T (2, 4, 5 trichlorophenoxyacetic acid)," while he was in Vietnam, that may have contributed to the development of liver cancer. According to Dr. H., while it was known that lymphomas and sarcomas had been associated with Agent Orange, primary liver cancers were not confirmed links. However, Dr. S. stated that given the carcinogenic nature of that compound, it was quite conceivable. The Veteran had also submitted a private medical statement from G.P.K., M.D., Division of Hematology/Oncology at the May Clinic, dated in December 2006, in support of his claim. In the statement, Dr. K. indicated that while the Veteran was in Vietnam, he had known exposure to carcinogens such as Agent Orange. According to Dr. K., the possibility of a relationship between the Veteran's in-service Agent Orange exposure and the development of his primary liver cancer could not be excluded. Dr. K. reported that the available data on that cancer remained inconclusive as to its actual cause. In addition, the Veteran submitted a private medical statement from M.S.D., M.D., from Hematology/Oncology Associates, dated in December 2006, in support of his claim. In the statement, Dr. D. indicated that he had been treating the Veteran since February 2006, for cholangiocarcinoma. Subsequently, the Veteran had 80 percent liver resection and chemotherapy for six months. Dr. D. noted that he was writing the letter in support of the Veteran's attempt to receive compensation for Agent Orange exposure and subsequent development of liver cancer. Based on the above, the Board finds that there was enough evidence of record at the time of the Veteran's death to conclude that he would have prevailed on his claim had he not died. Accordingly, entitlement to service connection for mixed hepatocellular carcinoma/cholangiocarcinoma is granted for purposes of accrued benefits. The facts below only support this finding. Cause of Death The Appellant asserts that the Veteran's death was related to herbicide exposure in service. As noted above, the Veteran died in October 2007. The death certificate lists the immediate cause of death as bile duct cancer (cholangiocarcinoma), with an underlying cause (disease or injury that initiated the events resulting in death) being an environmental cause - Agent Orange. At the time of the Veteran's death, the Veteran was not service connected for any disabilities, although a claim for entitlement to service connection for mixed hepatocellular carcinoma/ cholangiocarcinoma was pending at the time of his death. In addition, the Board has granted service connection for mixed hepatocellular carcinoma/ cholangiocarcinoma for accrued benefits purposes. To establish service connection for the cause of the Veteran's death, the evidence must show that the fatal disease was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2011). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or aided or lent assistance to the production of death. Generally, a service- connected disability, particularly one not materially affecting a vital organ, would not be held to have contributed to death primarily due to an unrelated disability. 38 C.F.R. § 3.312(c). 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. As noted above, in support of her claim, the appellant points to the December 2006 letters from Drs. W.R.H., G.P.K., and M.S.D. In addition, after the Veteran's death, Dr. G.P.K. submitted a follow-up statement, dated in December 2007. In the statement, Dr. K. indicated that the Veteran had died from cholangiocarcinoma. Dr. K. stated that it was his opinion that there was a relationship between the Veteran's in-service exposure to carcinogens such as Agent Orange, and the development of the Veteran's cancer. In July 2012, the Board sought a VHA opinion. See 38 C.F.R. § 20.901. The Board requested that an oncologist review the entire evidence of record and provide an opinion regarding whether it was at least as likely as not (50 percent or greater probability) that the Veteran's fatal cholangiocarcinoma was related to his period of active service, specifically his exposure to herbicides in Vietnam, to include Agent Orange. The Veteran's exposure to herbicides was presumed by law. Pursuant to this request, the Board received a VHA opinion from M.C.B., M.D., a VA oncologist, dated in September 2012. In the opinion, Dr. B. stated that she had reviewed the Veteran's claims file and had also reviewed medical literature. It was her opinion that it was at least as likely as not that the Veteran's fatal cholangiocarcinoma was related to his period of active service, specifically to his exposure to herbicides in Vietnam, to include Agent Orange. According to Dr. B., a review of the literature revealed Agent Orange as a possible risk factor for developing cholangiocarcinoma. The Veteran did not have a history of other known risk factors for developing cholangiocarcinoma such as primary sclerosing cholangitis, ulcerative colitis, bile duct cysts, or chronic biliary and liver inflammation. In addition, Dr. B. noted that cholangiocarcinoma was a rare tumor; it occurred in approximately 2 out of 100,000 people. There is no evidence of record suggesting another cause of the Veteran's fatal cholangiocarcinoma, other than herbicides, to include Agent Orange. Based on the above, the Board finds that the Veteran's cholangiocarcinoma, which was the immediate cause of his death, was at least as likely as not caused by the Veteran's herbicide exposure in service. Accordingly, as the evidence shows that the fatal disease was incurred in or aggravated by service or that a service-connected disability was the underlying cause of death, entitlement to service connection for the cause of the Veteran's death is granted. The Board apologizes for the delay in the full adjudication of her case and that of her spouse. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In this case, the Board is granting in full the benefit 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 Entitlement to service connection for mixed hepatocellular carcinoma/ cholangiocarcinoma, for purposes of accrued benefits is granted. Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs