Citation Nr: 1800344 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-45 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bile duct cancer/ cholangiocarcinoma (claimed as due to exposure to contaminated water and herbicides/Agent Orange for accrued purposes). 2. Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney at Law ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to August 1971. The Veteran died in December 2015, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran died in December 2015. At the time of his death, the Veteran had perfected his substantive appeal for service connection for bile duct cancer/ cholangiocarcinoma. In February 2016, his surviving spouse filed her application for substitution of claimant upon death of claimant. In August 2017, the appellant was determined to be eligible for substitution. See 38 U.S.C. § 5121A (a)(1). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran's bile duct cancer/cholangiocarcinoma was incurred in active duty service. 2. The Veteran's service-connected bile duct cancer/cholangiocarcinoma was a principal cause of his death. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the appellant, the Veteran's bile duct cancer/cholangiocarcinoma, was incurred in active duty service. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.303, 3.312(a) and (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and to Assist In light of the fully favorable decision no further discussion of compliance with VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Service Connection for Bile Duct Cancer/ Cholangiocarcinoma In order to obtain service connection under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303 (a), a Veteran must satisfy a three element test: (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 - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). In this case, the Veteran's service personnel records confirm that he was stationed in Vietnam for a period in service, and he is therefore presumed to have been exposed to herbicides. 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)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), IHD (including coronary artery disease), all chronic B-cell leukemias, Hodgkins disease, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Finally, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran was afforded a VA examination in September 2015, which confirmed his diagnosis of bile duct cancer. Therefore, the first prong of the service connection analysis is satisfied. Regarding the second prong, the appellant, via her attorney, argues that the Veteran's bile duct cancer was due to exposure to herbicide exposure in Vietnam and contaminated water at Camp Lejeune in 1971. The RO has conceded, and the Veteran's military personnel records support, the assertions that the Veteran served in these two locations. Regarding the third prong, the nexus requirement, the record contains four medical opinions addressing a potential causal relationship between the present disability and the Veteran's exposure during service. A VA medical opinion from September 2015 states that the Veteran's bile duct carcinoma is not due to, caused by, or related to his exposure to Camp Lejeune contaminated water, based on the medical and scientific literature and given the Veteran's gender and age at diagnosis, and his extensive smoking and drinking history. The appellant's attorney submitted a detailed private medical opinion from February 2016, which concluded that based on review of the Veteran's military service, his clinical history and medical records following his discharge from service, and emerging lines of clinical and scientific evidence that it is more likely than not that there is a causal relationship between the Veteran's in-service exposure to the human carcinogen dioxin present in Agent Orange and his later development of cholangiocarcinoma in the common duct position of his biliary tract. Specifically, the opinion described medical and scientific literature that indicates: that despite the Veteran's prior history of heavy cigarette smoking and beer-drinking, there is no scientific evidence that demonstrates an association between these unhealthy habits and the specific extra-hepatic type of cholangiocarcinoma that he developed; that the ATM gene mutation he inherited that increased his susceptibility to pancreatic cancer did not predispose him to cholangiocarcinoma; that his Agent Orange exposure caused him to develop insulin resistance which facilitated the development of a cancer-promoting internal hormonal milieu. In addition, the opinion stated that the medical and scientific literature demonstrates: how dioxin affects cells of the human biliary tract and how it initiates activation of potentially carcinogenic AHR-directed pathways; how dioxin can cause malignant transformation in many different tissues by activating the same AHR pathway that is present in most body organs; and how dioxin exposure can initiate the several types of cancer that the Institute of Medicine has previously related to Agent Orange in seemingly disparate tissues (prostate, respiratory cancers (lung, larynx, trachea, and bronchus), myeloma, lymphomas, chronic lymphatic leukemia) in Vietnam veterans. However, another VA examination from August 2017 addressed the Veteran's Agent Orange contentions and disagreed with the private opinion. This examiner opined that it is less likely than not (less than 50% probability) that the Veteran's cholangiocarcinoma was incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no well-founded evidence of a nexus between herbicidal exposure and cholangiocarcinoma, and disagreed with many of the points made by the private physician. In response, appellant's attorney submitted a point-by-point rebuttal to the August 2017 opinion provided by the private physician. Upon careful review of the evidence above, the Board finds that both the positive and negative opinions of record are competent and credible evidence with respect to the etiology of the Veteran's bile duct cancer/cholangiocarcinoma. Thus, the Board finds the evidence in relative equipoise, and as such, finds all reasonable doubt in the appellant's favor. Therefore, entitlement to service connection for the Veteran's bile duct cancer/ cholangiocarcinoma is granted. Service Connection for Cause of Death In order to establish service connection for cause of death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). The Veteran's death certificate indicates that he passed away on December 7, 2015 and that the underlying cause of his death was cholangiocarcinoma and acute respiratory failure with hypoxia. Therefore, the Board finds that the Veteran's bile duct cancer/ cholangiocarcinoma constituted the principal cause of his death. As, per this decision, the Veteran is now service-connected for this disability, the Board finds that entitlement to service connection for cause of death is warranted. Accordingly, service connection for cause of death is granted. ORDER Entitlement to service connection for bile duct cancer/ cholangiocarcinoma is granted. Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs