Citation Nr: 1331329	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  07-21 348	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to dependency and indemnity compensation, to include service connection for the cause of the Veteran's death and under the provisions of 38 U.S.C.A. § 1151 (West 2002).  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARINGS ON APPEAL

The appellant, her daughter, and her son




ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel


INTRODUCTION

The Veteran had active service from November 1954 to July 1976.  He died in March 2006.  The appellant is the Veteran's surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

The appellant and her son testified at a hearing before RO personnel in April 2007, and the appellant and her daughter testified at a Board video conference hearing in May 2008.  Transcripts of these hearings are of record.

The appellant's claim was remanded by the Board in August 2008 and again in April 2010.

In a March 2011 decision, the Board denied service connection for the cause of the Veteran's death as well as for dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318.  The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which issued an August 2012 Order granting a Joint Motion for Partial Remand (Joint Motion) vacating and remanding the portion of the Board decision that denied to service connection for the cause of the Veteran's death.  The Joint Motion reflects that the appellant abandoned the claim for DIC benefits pursuant to 38 U.S.C.A. § 1318.

The Board again remanded the appellant's claim in December 2012 and May 2013.  In a July 2013 supplemental statement of the case (SSOC), the agency of original jurisdiction (AOJ) continued the denial of the appellant's claim.  The appeal has since been returned to the Board for further appellate review.  

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.  The Veteran served in the Republic of Vietnam during the Vietnam War and is presumed to have been exposed to an herbicide agent.  

2.  The Veteran died in March 2006; according to his death certificate the immediate cause of death was end stage liver cancer-cholangioma (tumor of the bile duct).  

3.  At the time of the Veteran's death, service connection was in effect for diabetes mellitus, arteriosclerotic heart disease with hypertension, peripheral vascular disease, tenorrhaphy of the left Achilles tendon, vagotomy with pyloroplasty, and erectile dysfunction.  

4.  A service-connected disability was not the principal or contributory cause of the Veteran's death.  

5.  The disease process leading to the Veteran's death is not attributable to his active military service nor is it caused by any service-connected disability.  

6.  VA's failure to timely diagnose the Veteran's liver cancer (cholangiocarcinoma) was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault.  


CONCLUSION OF LAW

Dependency and indemnity compensation, to include entitlement to service connection for the cause of the Veteran's death and under the provisions of 38 U.S.C.A. § 1151, is not warranted.  38 U.S.C.A. §§ 1110, 1113, 1116, 1131, 1151, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312, 3.361 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

In the context of a claim for service connection for cause of death benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected.  See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).  Although there are particular notice obligations with respect to a claim for service connection for cause of death benefits, there is no preliminary obligation on the part of VA to conduct a "predecisional adjudication" of the claim before providing a section 5103(a)-compliant notice.  Id. at 352.  

The AOJ sent the appellant a Hupp compliant notice letter in May 2013.  The appellant was also informed of the process by which effective dates are assigned.  The Board is mindful that the May 2013 notice letter came after the initial adjudication of the appellant's claim by the AOJ in December 2006.  Ideally, the notice should be provided prior to an initial unfavorable decision on a claim by the AOJ.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Nonetheless, the most recent July 2013 SSOC appropriately readjudicated the appellant's claim, thereby curing the notice timing error.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  See also Shinseki v. Sanders, 129 S. Ct. 1696, 1704-05 (2009) (holding that notice errors must be examined in the context of the facts of the particular case to determine whether they are prejudicial).  (Parenthetically, the Board notes that a prejudicial error is one that affects the "essential fairness" of the adjudication by depriving the claimant of a "meaningful opportunity to participate effectively" in the adjudication of the claim.  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).)  

Otherwise, in its May 2013 remand, the Board instructed the AOJ to contact the appellant and request that she complete authorizations (VA Form 21-4142) so VA could obtain records from "Dr. Tan, Harmon Rehabilitation Center, Henderson Health Care, and Odyssey Hospice."  In its subsequent May 2013 notice letter, the AOJ requested that the appellant complete VA Form 21-4142s to allow the AOJ to obtain evidence from the Veteran's health care providers with respect to his medical treatment.  The AOJ's notice letter did not specifically identify Dr. Tan, Harmon Rehabilitation Center, Henderson Health Care, and/or Odyssey Hospice.  Nonetheless, the May 2013 Board remand, a copy of which was sent to both the appellant and her representative, placed the appellant on notice of the possibility that some of the Veteran's other health care providers could have medical records pertinent to the appellant's claim.  It identified, as noted above, Dr. Tan, Harmon Rehabilitation Center, Henderson Health Care, and/or Odyssey Hospice.  Thus, even if the AOJ failed to notify the appellant of the specific health care providers identified in the Board remand, that error was harmless because the body of the Board's remand and its instruction paragraphs to the AOJ adequately notified the appellant of the opportunity to submit medical evidence from the identified health care providers.  See e.g., Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran).  

Furthermore, VA has done everything reasonably possible to assist the appellant with respect to her claim in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c).  See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (acknowledging that the plain language of section 5103A(d) specifically limits it to "claims for disability compensation," and thus it does not apply to DIC claims).  The Veteran's service treatment records (STRs) are associated with the claims folders as are his VA and private treatment records.  Medical opinions have also been obtained and are deemed sufficient for application with regards to the Veteran's claim.  Also, the appellant's representative has submitted written argument and referenced a number of Internet websites that discuss diabetes mellitus and its relationship to liver cancer.  It has been requested that a non-VA medical opinion be obtained regarding the relationship between the Veteran's diabetes mellitus and his liver cancer.  The Board notes that neither the appellant nor her representative has challenged the competency of the VA examiners who offered medical opinions in this case.  The Board finds the VA opinions probative of the issue on appeal.  As such, an additional non-VA medical opinion is not found warranted in the present case.  

Otherwise, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issue on appeal.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim on appeal.  



II.  Analysis

The appellant's claim for DIC benefits was received by the AOJ in April 2006.  She asserts that the Veteran's death from cholangiocarcinoma (cancer of the bile duct) was caused by his service-connected diabetes mellitus.  Alternatively, she asserts that VA clinicians failed to properly diagnose and treat the Veteran's gallstones which lead to his cancer of the bile duct and ultimately to his death.  

Applicable Regulations

To establish service connection for the cause of a veteran's death, the evidence must show that a service-connected disability was either the principal (primary) or a contributory cause of death.  38 C.F.R. § 3.312(a).  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 contributory cause of death is inherently one not related to the principal cause.  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).  

The law also recognizes that certain primary causes of death are by their very nature so overwhelming that eventual death can be anticipated irrespective of coexisting conditions.  But even in those cases, VA considers whether there may be a "reasonable basis" for finding that a service-connected condition was of "such severity" to have a "material influence in accelerating death."  In such a situation, however, it is not generally reasonable to hold that a service-connected condition accelerated death unless the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).  

With respect to claims filed on or after October 1, 1997, 38 U.S.C.A. § 1151 provides in pertinent part that compensation shall be awarded for a qualifying additional disability or qualifying death in the same manner as if such additional disability or death was service connected.  For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable.  38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.361.  

To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death.  Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or that he died does not establish cause.  38 C.F.R. § 3.361(c)(1).  Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(c)(2).  

The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.  38 C.F.R. § 3.361(d).  To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent.  38 C.F.R. § 3.361(d)(1).  

Finally, the determination of whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen.  The event does not have to be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  38 C.F.R. § 3.361(d)(2).  The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(2).  

The provisions of 38 C.F.R. § 17.32, Informed Consent, a section under the heading of Protection of Patient Rights, are extensive.  In particular, under 38 C.F.R. § 17.32(b), all patient care furnished under title 38 U.S.C. shall be carried out only with the full and informed consent of the patient or, in appropriate cases, a representative thereof. 

Discussion

The Board has reviewed all evidence in the claims folders and in the electronic case file (Virtual VA), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, the Board is not required to discuss, in detail, every piece of evidence of record.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim.  

At the time of the Veteran's death, service connection was in effect for diabetes mellitus, for arteriosclerotic heart disease with hypertension, for peripheral vascular disease, for tenorrhaphy of the left Achilles tendon, for vagotomy with pyloroplasty, and for erectile dysfunction.  The Veteran's death certificate reveals that he died in March 2006 of end stage liver cancer-cholangioma due to (or as a consequence of) withdrawal of care and due to respiratory failure.  

The evidence reflects an October 2005 VA dermatology consult note in which the Veteran's scleras were reported as being white.  The Veteran was noted to have pruritic rashes which the dermatologist reported had improved with the use of miconazole powder.  A December 27, 2005 VA primary care note reflects reference to the Veteran's lab results for liver enzymes.  The lab results reflect a 27 for both ALT and AST (ALT and AST are tests related to liver function).  Evaluation of the Veteran's abdomen was normal without organomegaly or tenderness.  A negative finding for jaundice was also indicated.  The following day, December 28, 2005, the Veteran presented to the emergency room of Desert Springs Hospital Medical Center after suffering an apparent seizure.  At that time he reported having passed out.  Examination of the Veteran revealed him to be jaundiced.  A workup of the Veteran also revealed abnormal liver function tests and he was ultimately found to have an invasive cholangiocarcinoma.  The Veteran subsequently died at a private hospital in March 2006.  

At an April 2007 hearing before a Decision Review Officer and a May 2008 videoconference hearing before the Board, the appellant asserted that the Veteran's liver cancer had been caused by his service-connected diabetes mellitus.  She also asserted that the diabetes mellitus acted to hasten the Veteran's death.  Additionally, it was also argued that VA should have diagnosed the Veteran's numerous gallstones and that the gallstones caused the Veteran's cholangiocarcinoma.  

The evidence also consists of a January 2007 statement from the Veteran's private physician.  The physician stated that the Veteran had died from cholangiocarcinoma of undetermined etiology.  He noted that there was an association between cholangiocarcinoma and ulcerative colitis, hepatic fibrosis and polycystic disease.  The physician further commented that the Veteran's service in Vietnam placed him at a slightly higher risk for a pre-malignant underlying disorder.  He further stated that exposure to other carcinogens may have placed the Veteran at increased risk for cholangiocarcinoma.  

Medical literature and/or Internet websites submitted by the appellant and her representative reflect information on diabetes mellitus as a risk factor for liver cancer as well as information that people who suffer from diabetes had an increased risk for liver cancer.  The literature also noted that it was unclear whether diabetes directly caused liver disease.  In particular, submitted literature from www.Healthology.com discussed the increased risks of liver cancer in persons who suffered from diabetes mellitus.  The medical article noted a VA doctor's comment that persons with diabetes should have their liver enzymes tested on an ongoing basis.  Also, submitted literature from www.emedicine.com noted that pruritus was a symptom of cholangiocarcinoma and that it usually preceded jaundice.  It was also noted that the etiology of most bile duct cancers remained undetermined but that gallstones were believed to increase the risk.  

The Veteran's medical records were reviewed by a VA examiner in November 2006.  The examiner gave a history of the Veteran's terminal illness.  She noted that the Veteran was diagnosed as having cancer with a very poor survival rate and that his demise was expected as the cancer was unresectable and at end-stage, rendering a very poor prognosis.  The examiner was of the opinion that the Veteran's service-connected diabetes mellitus, arteriosclerotic heart disease, hypertension, and peripheral vascular disease did not contribute to his death.  She further opined that the effects of the diabetes were not debilitating enough to render the Veteran less capable of resisting the effects of his cancer.  She also opined that the Veteran's service-connected diabetes mellitus and arteriosclerotic heart disease were not of such severity as to have had a material influence on accelerating death.  

The Veteran's medical records were reviewed by another VA examiner in December 2009.  The examiner opined that the Veteran's cholangiocarcinoma (Klatskin's tumor) was not caused by gallbladder stones or by the Veteran's service-connected diabetes mellitus.  He also opined that Klatskin's tumor alone contributed to the Veteran's death and that there was no known cause for the cancer.  The examiner commented that the Veteran's death was not the result of negligence, carelessness, lack of proper skill, or error of judgment on the part of VA in not treating the Veteran's multiple gallstones prior to his death.  He noted that the Veteran was first discovered to have cholangiocarcinoma when admitted to a private hospital in December 2005 secondary to syncope.  At that time, liver function tests were abnormal, the Veteran was jaundiced, and subsequent testing revealed the Klatskin's tumor.  The VA examiner further noted that the Veteran probably did not have signs or symptoms of this disorder while being treated through the VA system, noting that the Veteran had normal liver function testing in October 2005 to include a normal bilirubin laboratory test finding.  

The Veteran's claims folders were again reviewed by a VA examiner in January 2013.  In particular, the VA examiner opined that it was less likely as not that the Veteran's exposure to herbicides in Vietnam caused end stage liver cancer-cholangiocarcinoma.  In support of her opinion, the examiner referenced the Institute of Medicine's (part of the National Academy of Sciences) study on the exposure of herbicides and its effects, in which it was cited that there was currently inadequate/insufficient evidence to determine whether an association existed between Agent Orange and cancer of the liver and bile ducts.  The examiner also opined that it was less likely as not that any service-connected disability, in particular diabetes mellitus, played any role in the Veteran's death.  The examiner referenced the Veteran's service-connected disabilities noting, in particular, that the Veteran's diabetes mellitus, hypertension, and arteriosclerotic heart disease were under fair control at the time of his death.  Furthermore, while there were studies suggesting an association between diabetes mellitus and cancer of the biliary tract, the role diabetes played was still unclear.  In support of this conclusion, the examiner cited to UpToDate, a medical literature/studies website.  

As noted previously, the Veteran's cause of death was the result of end stage liver cancer-cholangioma (or bile duct cancer).  A review of the Veteran's STRs does not reflect complaints, diagnoses, or treatment for liver cancer or for liver disease.  

The Veteran served in Vietnam.  Therefore, he is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(a)(6)(iii).  If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e).  Of relevance in the present case, cancer of the liver is not listed among the diseases presumed to be related to herbicide exposure.  38 U.S.C.A. § 1116(a)(2)(F).  

Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, a claimant is not precluded from presenting evidence that a disability was due to or the result of herbicide exposure.  Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999).  As noted above, a January 2007 statement from a private physician noted that exposure to carcinogens may have placed the Veteran at increased risk for cholangiocarcinoma.  The Board finds the physician's statement, at best, is speculative with regard to the connection between presumed herbicide exposure and the Veteran's development of cholangiocarcinoma.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative).  Otherwise, the January 2013 VA examiner opined that it was not as likely as not that the Veteran's exposure to herbicides in Vietnam caused cholangiocarcinoma.  The examiner was noted to have reviewed the Veteran's claims folders and her opinion was supported by discussion of the Institute of Medicine's study on the exposure of herbicides and its effects.  As noted above, the study was noted by the examiner to have found inadequate/insufficient evidence to determine whether an association existed between Agent Orange and cancer of the liver and bile ducts.  In this case, the Board finds the examiner's opinion probative as it is based on a complete review of the Veteran's service and post-service medical history.  

With regard to the argument that the Veteran's service-connected diabetes mellitus contributed to his death, medical literature has been submitted and/or reviewed that identifies diabetes mellitus as a risk factor for liver cancer.  

As noted above, the Veteran's claims folders have been review by three different VA medical doctors.  The examiner in November 2006 was of the opinion that the Veteran's service-connected diabetes mellitus, arteriosclerotic heart disease, hypertension, and peripheral vascular disease did not contribute to his death.  She further opined that the effects of the diabetes mellitus were not debilitating enough to render the Veteran less capable of resisting the effects of his cancer, or that diabetes mellitus and arteriosclerotic heart disease were of such severity as to have had a material influence on accelerating death.  The VA examiner in December 2009 opined that the Veteran's cholangiocarcinoma (or Klatskin's tumor) was not caused by gallbladder stones or by the Veteran's service-connected diabetes mellitus.  He also opined that the cholangiocarcinoma alone contributed to the Veteran's death and that there was no known cause for the cancer.  The January 2013 VA examiner opined that it was less as likely as not that any of the Veteran's service-connected disabilities were related to his death.  In particular, the examiner noted that the Veteran's diabetes, hypertension, and heart disease were under fair control prior to his death and while there were studies suggesting an association between diabetes and cancer of the biliary tract, it's role was still unclear.  In support of her conclusion, she cited to literature from the website UpToDate which noted that it was unclear whether diabetes or other associated conditions (e.g., obesity, hyperlipidemia) represented true risk factors for cholangiocarcinoma.  

The Board has reviewed the medical literature submitted by the appellant as well as the Internet websites referenced by her representative in a September 2013 Informal Hearing Presentation.  Of note, the appellant submitted a copy of a medical study article from UpToDate, the medical study/literature website,  cited to by the January 2103 VA examiner.  The appellant's submitted copy (noted as updated in September 2009) and the most recently updated copy of the article obtained by the Board (noted as updated in August 2013) reflect the same conclusions with respect to diabetes mellitus as a risk factor for cholangiocarcinoma.  As referenced in part by the VA examiner in her opinion, the most recent August 2013 update notes the following:

An association between diabetes mellitus and cancer of the biliary tract has been suggested in several case-control and cohort studies.  In a meta-analysis of 15 such studies, individuals with diabetes had a significantly increased risk of cholangiocarcinoma relative to non-diabetics . . . .  The risk was significantly elevated for both intrahepatic and extrahepatic cholangiocarcinomas.  Whether diabetes itself or other associated conditions (eg, obesity, hyperlipidemia) represent the true risk factors for cholangiocarcinoma is not clear.

See http://www.uptodate.com/contents/epidemiology-pathogenesis-and-classification-of-cholangiocarcinoma.  

Otherwise, the medical literature reviewed documents a possible connection between diabetes mellitus and liver cancer.  The Board finds this evidence to be generic, as the literature does not address the Veteran's specific factual situation; thus, it is not probative of the appellant's claim.  A nexus may be proved if a medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts.  Sachs v. West, 11 Vet. App. 314, 317 (1998).  The medical literature submitted and reviewed in this case, however, does not demonstrate causality but instead only loose associations.  Although the literature raises a possible relationship between diabetes mellitus and cholangiocarcinoma, no clear causality is suggested.  Therefore, the Board does not consider the evidence to be persuasive and it is assigned less probative weight.  

Otherwise, the Board finds the opinions of the above noted VA examiners to be probative and persuasive.  The opinions are based on a review of the Veteran's medical history, and the opinion of the January 2013 VA examiner reflects her citation and consideration of the medical literature/study (UpToDate) submitted by the appellant.  Furthermore, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case-whether the Veteran's cholangiocarcinoma is related to service (to include herbicide exposure) or to service-connected disability falls outside the realm of common knowledge or expertise of the appellant.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  

Therefore, although the Veteran is presumed to have been exposed to an herbicide agent in Vietnam, his cancer of the liver (cholangiocarcinoma) is not presumed to be related to herbicide exposure due to the fact that liver cancer is not a listed disease recognized by law as being presumptively related to such exposure.  38 U.S.C.A. § 1116(a)(2)(F); 38 C.F.R. § 3.309(e).  Otherwise, the evidence of record weighs against a finding that the Veteran's cholangiocarcinoma was incurred or aggravated during military service, or is related to military service, to include herbicide exposure.  Additionally, the evidence of record weighs against a finding that the Veteran's service-connected disabilities, in particular diabetes mellitus, were either a primary or a contributory cause of his death.  In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against the appellant's claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.312.  

With respect to the appellant's alternative theory associated with the provisions of 38 U.S.C.A. § 1151, that the Veteran's death was a result of VA not properly diagnosing or treating his gallstones and that the gallstones were the cause of the cholangiocarcinoma, the December 2009 VA examiner commented that the Veteran's cholangioma (bile duct tumor) was not caused by gallstones, and that the Veteran's death was not the result of negligence, carelessness, lack of proper skill, or error of judgment on the part of VA in not treating the Veteran's multiple gallstones prior to his death.  The examiner supported his conclusion by noting that there was some controversy regarding the association between gallstones/chronic bile duct inflammation and the development of bile duct tumors.  Still, there was no known cause for cholangiocarcinoma.  Medical literature submitted by the appellant supports the VA examiner's conclusion regarding an unknown etiology for cholangiocarcinoma.  Neither the appellant nor her representative has otherwise alluded to or submitted any medical opinion evidence that refutes or contradicts the opinion provided by the December 2009 VA examiner.  

The Board has also considered the appellant's argument that additional testing should have been conducted when the Veteran was complaining of back pain.  If testing would have been undertaken, it is argued, the Veteran's gallstones would have been identified and in turn, the Veteran's cholangiocarcinoma.  The appellant has not submitted any medical evidence that the Veteran's complaints of back pain should have reasonably been construed as an indicator for gallstones or evidence of gallbladder disease.  On the contrary, an April 2003 MRI reflects degenerative changes in the Veteran's lumbar spine.  Otherwise, none of the Veteran's VA treatment records necessarily document consistent complaints of stomach or epigastric pain or abdominal tenderness or other symptoms of gallstones or gallbladder disease.  The Board finds persuasive that even when first treated at the Desert Springs Hospital Medical Center emergency room on December 28, 2005, the Veteran was noted not to complain of nausea, vomiting, or abdominal pain.  Clinical evaluation of the Veteran's abdomen at that time revealed it to be soft and nontender.  A subsequent abdominal ultrasound, however, did identify the Veteran's gallstones.  The Board also finds persuasive that the Veteran's son, during the April 2007 RO hearing, testified that the Veteran was a very proud man and was not the type of person to complain.  The son's testimony in this regard would appear to account for the lack of documented symptomatology or diagnoses associated with gallstones in the Veteran's medical records prior their discovery at Desert Springs Hospital Medical Center.  

At the same time, even assuming that VA should have diagnosed and treated the Veteran for his gallstones and did not, the medical opinion evidence of record does not reflect that the Veteran's gallstones were the proximate cause of his cholangiocarcinoma.  The Board finds the December 2009 examiner's opinion in this regard to be probative of the issue under consideration and to be persuasive.  Although the medical literature submitted and reviewed in this case appears to identify that gallstones resulted in an increased risk for developing cholangiocarcinoma, nonetheless, no clear causality is suggested.  Therefore, the Board does not consider the medical literature to be persuasive and assigns it less probative weight.  

Otherwise, the appellant's own submitted literature documents the difficulty in diagnosing cholangiocarcinoma.  An article from John Hopkins Pathology on gallbladder and bile duct cancer notes that, 

Biliary tract cancers are notoriously challenging to diagnose and treat.  

An article from the University of Southern California, Department of Surgery, regarding bile duct cancer, notes in particular,

The patient usually presents with jaundice (yellowness of the skin) and/or abnormal liver function tests.  The diagnosis is usually made when the medical work up for the jaundice shows the presence of a tumor in the bile duct.  

As noted above, the sclera of the Veteran's eyes was noted as white during an October 2005 VA dermatology evaluation.  Although pruritus was identified, it was noted to be improving.  The Veteran was later seen by a VA clinician on December 27, 2005, complaining of back pain.  The associated VA primary care note does not reflect findings of jaundice, abdominal tenderness, or organomegaly.  In addition, the VA clinician referenced the Veteran's October 2005 liver enzyme test results, which were later interpreted by the December 2009 VA examiner as being normal (along with a normal bilirubin lab finding).  The liver enzyme tests were conducted approximately three months prior to the Veteran's diagnosis of cholangiocarcinoma.  In light of the above and based on a review of additional VA medical records, the Board does not find symptoms, lab test results, or other diagnostic indicators (individually or in combination) that would necessarily identify the Veteran as suffering from cholangiocarcinoma.  

The Board also notes that while lay persons are competent to provide opinions on some medical issues, see Kahana, as to the specific issue in this case-whether the VA was negligent in its failure to diagnose the Veteran's cholangiocarcinoma or in failing to properly treat the Veteran's gallstones, or whether the Veteran's gallstones proximately caused his cholangiocarcinoma, falls outside the realm of common knowledge or expertise of the appellant.  

Therefore, the Board finds VA's failure to diagnose the Veteran's cholangiocarcinoma was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment or examination.  VA did meet the standard of care that would be expected of a reasonable health care provider in treating the Veteran prior to his diagnosis of cholangiocarcinoma at Desert Springs Hospital Medical Center in December 2005.  The Board finds persuasive that two important precursors of cholangiocarcinoma, jaundice and abnormal liver enzymes, were not evident during the Veteran's VA treatment.  Furthermore, even assuming carelessness, negligence, or fault on the part of VA in not treating the Veteran's gallstones, the weight of the competent evidence does not reflect that the Veteran's gallstones played a causative role in the Veteran developing cholangiocarcinoma.  

Therefore, while sympathetic with the appellant's contentions, benefits under 38 U.S.C.A. § 1151 for the Veteran's death due to VA's failure to timely diagnose his cholangiocarcinoma and/or his gallstones is not for application.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.  In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against the appellant's claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.312.  


ORDER

Service connection for the cause of the Veteran's death, to include under the provisions of 38 U.S.C.A. § 1151 (West 2002), is denied.  



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs