Citation Nr: 1756659 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-26 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Timothy R. Franklin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1988. He died in September 2009 and the Appellant in this matter is his surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). The case is now under the jurisdiction of the Denver RO. In April 2016, a hearing was held before the undersigned. A transcript of this hearing has been associated with the Veteran's file. During the hearing, the appellant submitted additional evidence with a waiver of initial RO consideration. In a May 2016 decision the Board denied the Appellant's claim. The Appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). By an order dated in March 2017, the Court remanded the claim for action consistent with a March 2017 joint motion for remand (JMR). Thus, the issue is again before the Board. FINDINGS OF FACT 1. The Veteran died in September 2009. The Certificate of Death lists the immediate cause of death was due to cholangiocarcinoma (CCA), which can be caused by chronic bile duct (liver) infection, inflammation and fibrosis that results from Opisthorchis viverrini parasites infestation. 2. The Veteran had service in Southeast Asia, (4 years in total) to include the Republic of Vietnam, Thailand, and the Philippines where there was a significant presence of Opisthorchis viverrini parasites in the local fish. 3. In service, it is reasonable to find the Veteran consumed local fish infested with Opisthorchis viverrini parasites. 4. Resolving reasonable doubt in the Appellant's favor, the disability that caused and/or contributed to the Veteran's death is related to the Veteran's active duty service, to include exposure to biliary Opisthorchis viverrini parasites (OVP) in the food while serving in Southeast Asia. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C. § 1310 (West 2014); see also 38 C.F.R. § 3.312 (2017). A service-connected disability is considered the "principal" cause of death when that 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. 38 C.F.R § 3.312(c). A contributory cause must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a disability, the evidence must show: (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 (Fed. Cir. 2004). Service connection may also be granted for certain enumerated chronic diseases, including malignant tumors that manifest to a compensable degree within one year of the veteran's separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). It is uncontested that, as shown on the death certificate, the Veteran's death had an immediate cause of CCA. Thus, the issue that remains disputed is whether the Veteran's CCA was related to service, to include any exposure to OVP in the water and food while stationed in Vietnam, Thailand, and the Philippines. The Appellant asserts that the Veteran's CCA was the proximate result of his in-service exposure to OVP in the water and food while he was stationed in Vietnam, Thailand, and the Philippines. See March 2011 NOD; April 2016 Statement; April 2016 Hearing Transcript. Specifically, the Appellant reported that the Veteran consistently spoke about how much he liked the food in Thailand and reported that he also mentioned that he really loved the local food in Vietnam, but also got diarrhea. She further reported that the Veteran ate off base more than on base. The Board finds that the evidence is in relative equipoise as the whether the Veteran's cause of death is related to exposure to OVP while in service. There is no evidence of record showing that the Veteran had CCA during service, or that it manifested to a compensable degree within one year of his separation from service. While the service treatment records document the Veteran underwent an elective cholecystectomy, the service treatment records do not show complaints, findings or diagnoses of any liver disorder. However, a July 1975 treatment note does show one complaint of undiagnosed abdominal pain. Evidence in support of the Appellant's claim includes a December 2012 opinion of non-VA physician Dr. S.L. He indicated that he treated the Veteran in 2009 for metastatic CCA. Dr. S.L. stated that there were many risk factors for CCA, however, primary sclerosing cholangitis, viral hepatitis and gallstones were unlikely because the Veteran had either no radiological evidence of these risk factors or he was tested negative. Dr. S.L. noted that another possible risk factor for CCA is a history of liver flukes infection like OVP. He noted that the flukes are present in Southeast Asia and that the Veteran may have been exposed to them during his time in Vietnam. Dr. S.L. indicated that he was unable to confirm that the Veteran was in fact infected 30 years ago, however, it was still possible since his history of being in the region and the timing of exposure. The Appellant has also submitted several articles that show a link between CCA and OVP in the water of Vietnam as well as favorable rating decisions for other Veterans' claims. The Board notes, however, the articles are a general reference and do not specifically address the Veteran's medical situation. Further, the favorable rating decisions were based on the medical evidence contained in other Veteran's files as well as other evidence of record contained in those files. As such, this evidence is of limited probative value. Evidence against the Appellant's claim includes an October 2011 VA medical opinion that the Veteran's CCA was less likely than not caused by, or due to, OVP infection contracted through service in Southeast Asia. The examiner indicated that the local Thai fish in the 1960's and 1970's were heavily infected with OVP. He noted that human OVP liver infections are caused by the ingestion of OVP infected raw or undercooked fish. The examiner indicated that human OVP infections cause chronic bile duct (liver) infection, inflammation, and fibrosis that are often asymptomatic despite the level of infection. Heavy human OVP liver infections are a severe carcinogenic risk factor for subsequent (30 to 40 years later) development of CCA. The examiner noted that the Veteran did have extensive Southeast Asia service to include 18 months in Thailand; and noted that any person living in Thailand who ate raw or undercooked fish would be at high risk (near certainty) for OVP infection. Thus, the issue would be if the Veteran repeatedly ate raw or undercooked Thai fish while stationed in Thailand. The examiner noted that such was highly unlikely based on two facts. First, as indicated by the examiner, the Veteran's duty assignment was that of a cryptology machine maintenance technician. He noted that such entailed a purely garrison duty, on a large Air Force Base, eating and drinking uncontaminated food and water. He noted that the Veteran would not be "humping through the bush" as an infantryman being forced to drink local water in the field or being forced to live with indigenous natives and eat their local food. In sum, the examiner found that the Veteran's service duties by itself would not put the Veteran at risk for OVP infection. Next, the examiner determined that the Veteran would only be at risk for OVP infection if he voluntarily went off-base and ate the local raw or undercooked fish. The examiner noted that if such were the case, it would be logical that the Veteran would also drink local water, or use local ice cubes for his drinks, or eat local fruits/vegetables that were washed with local water. The examiner noted that it was a well-known fact (also to him, as he began his 30-year Army career as a Vietnam-era soldier) that the local water supplies in Southeast Asia are universally infected with coliform bacteria that cause dysentery. Yet, as the examiner indicated, upon review of the Veteran's STRs there are no notes of any dysentery symptoms. He opined that it would be impossible for the Veteran to avoid episodes of dysentery if he was repeatedly eating native Southeast Asia food supplies, to include potential OVP infected fish. The examiner concluded that without any documented dysentery episodes, the likelihood of significant ingestion of OVP infected fish was essentially impossible. He concluded that since the Veteran had little risk of OVP infection, then his 2009 onset of CCA was an unknown etiology and it is less likely than not that the CCA was caused by, or due to, OVP infection from service in Southeast Asia. As noted above, since the October 2011 VA medical opinion was issued, the Appellant reported that the Veteran often ate local food while in service in Southeast Asia and reported suffering from diarrhea in service. Here, the reviewer's opinion rests heavily upon the reasoning that the Veteran had limited exposure to local food and water sources in service, since he did not suffer from dysentery symptoms. (He essentially acknowledges that frequently consuming local fish that was undercooked would result in a certainty of exposure to OVP, and that the presence of dysentery symptoms would support the conclusion of consumption of local food products.) Although dysentery symptoms were not noted in the Veteran's service treatment records, his widow testified the Veteran frequently ate local food, and in fact, did experience bouts of dysentery symptoms, (diarrhea). These are facts she is competent to relate, and accepting them to be true places the evidence in this case in relative equipoise on whether the Veteran's cause of death was ultimately due to the in-service ingestion of OVP, which later caused his CCA. Resolving reasonable doubt in the Appellant's favor, the Board finds that the Veteran's death was related to exposure to OVP in the food while serving in Southeast Asia. Accordingly, service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs