Citation Nr: 1304033 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 12-12 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kenneth S. Kabb, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran had active service that spanned from January 1969 to November 1970 and included a tour of duty in the Republic of Vietnam. He died on March [redacted], 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. In October 2012, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. On March [redacted], 2010, the Veteran died of complications of cholangiocarcinoma. 2. At the time of his death, the Veteran was in receipt of service connection for arteriosclerotic heart disease, type II diabetes mellitus, bilateral sciatic nerve inflammation, tinnitus, and hearing loss. 3. The competent and credible evidence indicates that the Veteran's in-service exposure to parasites in the Republic of Vietnam was a substantial factor in the development of his fatal cholangiocarcinoma. CONCLUSION OF LAW A disability that was incurred as a result of service contributed substantially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This decision represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a) (2012). For a service-connected, or otherwise service-related, disability to constitute the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). For such a disability to constitute a contributory cause, it must contribute substantially or materially to the Veteran's death. It is insufficient to show that such a disability casually shared in producing death. Rather, a causal connection must be established. 38 C.F.R. § 3.312(c) (2012). In sum, an appellant may qualify for DIC benefits if the principal or contributory cause of the Veteran's death was (1) a previously nonservice-connected disability that was in fact incurred or aggravated by service; (2) or an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. In this case, the Veteran's death certificate reflects that he passed away on March [redacted], 2010, of complications from cholangiocarcinoma. The Veteran was not in receipt of service connection for this rare form of biliary tract cancer at the time of his death. Nor did he have a claim pending for this disease at any point in his lifetime. Nevertheless, the Veteran's surviving spouse now asserts that his cholangiocarcinoma was etiologically related to his active service. Specifically, in written statements and testimony before the Board, she contends that he developed the cancer through exposure to parasites during his tour of duty in Vietnam. In support of her lay assertions, the appellant has submitted the results of a statistical study, which purports to show that cholangiocarcinoma is significantly more common in native Vietnamese males than in Caucasian males who have not set foot in Vietnam. The appellant also has submitted a letter from the surviving spouse of another Vietnam-era Veteran whose death from cholangiocarcinoma was determined to be service-connected. In addition to the foregoing lay and general medical evidence, the appellant has supplemented the record with a clinical opinion that specifically relates the Veteran's death to his in-country service. That positive nexus opinion was authored by a private physician who treated the Veteran for cholangiocarcinoma up until his death. As a rationale for that opinion, the physician notes that, during the Veteran's tour of duty in Vietnam, he "was likely exposed to clonorchi sinensis and optisthorchis viverrini, parasites that are endogenous to that geographic area." The physician further notes that such parasites are recognized as risk factors in the development of the particular form of cancer to which the Veteran ultimately succumbed. Consequently, the physician concludes, the Veteran's Vietnam-era service as likely as not contributed to his death. The Board considers the positive nexus findings of the late Veteran's private physician to constitute the most probative opinion evidence of record. See Gabrielson v. Brown, 7 Vet. App. 36 (1994) (the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators). In making this determination, the Board has considered whether the particular examiner was 1) fully informed of the pertinent factual premises (i.e., medical history) of the case; 2) provided a fully articulated opinion; and 3) supported that opinion with a detailed analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board is satisfied that the private physician met all three of the above criteria. Indeed, while it is unclear whether that clinician reviewed the entire file, she nonetheless demonstrated a thorough understanding of the Veteran's pertinent in-service and post-service history, including his tour of duty in Vietnam and his subsequent diagnosis of and treatment for the cancer that ultimately took his life. Moreover, the Board considers it significant that the private physician based her opinion on her own treatment of the Veteran as well as on her expert knowledge of the specific risk factors underlying his fatal disease. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997) (factors in determining the weight assigned to medical opinion evidence include the health care provider's knowledge and skill in analyzing the medical data). Further, the Board observes that the private physician's opinion is not controverted by any other evidence of record, medical or lay. On the contrary, that private opinion is consistent with both the lay argument and the supporting clinical literature, which the appellant has presented in an effort to establish an etiological link between the Veteran's service and his cause of death. See Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998) (submission of pertinent medical literature, in combination with medical nexus opinions, is considered probative evidence in support of claim for service connection). In light of the foregoing, the Board fins that the evidence, as a whole, indicates that the Veteran's fatal cholangiocarcinoma was related to his exposure to parasites in Vietnam. Therefore, entitlement to service connection for the cause of the Veteran's death is established. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs