Citation Nr: 18151148 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 09-07 730 DATE: November 20, 2018 ORDER Entitlement to service connection for the Veteran’s cause of death is granted. INTRODUCTION The Veteran served on active duty in the Army from October 1967 to October 1969. He died in February 2007 and the appellant is his surviving spouse. This matter initially came before the Board of Veterans’ Appeals (Board) from a June 2007 rating decision. In June 2010, the Board denied the claim of service connection for cause of death. The appellant appealed to the Court of Appeals for Veterans’ Claims (Court), and the Court vacated and remanded the claim in an October 2012 decision. The Board remanded the claim in July 2013, January 2015 and September 2017 for further development. The Board also notes that the Veteran first became represented by the above noted representative in November 2012. FINDING OF FACT 1. The Veteran died in February 2007 and his death certificate lists the immediate cause of death as liver cancer. 2. The evidence is at least evenly balanced as to whether the cholangiocarcinoma, a type of liver cancer, that caused the Veteran’s death is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.102, 3.303(a), 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310 (a); 38 C.F.R. § 3.5 (a)(1). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310 (a). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Additionally, the Boards notes that veterans who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975, are presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Here, the Veteran’s DD Form 214 and service personnel records confirm that the Veteran served in the Republic of Vietnam during the relevant time period. Thus, in-service exposure to an herbicide agent is conceded. Additionally, service treatment records indicate that the Veteran was diagnosed with malaria during his active duty in Vietnam in April 1969. Taken together, the in-service injury or disease element is established. The appellant’s representative’s most recent statement in August 2017 advanced four main theories of service connection, arguing that the Veteran’s liver cancer, of which cholangiocarcinoma is one type, was related to damage to his liver from having contracted malaria while in service, that it was related to medications he was prescribed during service to treat his malaria, that it was related to in-service exposure to Agent Orange and/or benzene, or that it was related to in-service exposure to and contraction of liver fluke. The September 2017 Board decision remanded the claim for medical opinions addressing each of these theories. Regarding nexus, there are several medical opinions of record, including VA medical opinions from October 2009, August 2014, June 2016 and August 2018, and a July 2015 private medical opinion. However, as determined by Board remands in November 2015 and September 2017, the VA medical opinions from October 2009, August 2014 and June 2014 were inadequate as they did not address all of the questions at issue in this case. Thus, the only adequate opinions of record are the August 2018 VA medical opinion and the July 2015 private medical opinion. The July 2015 private medical opinion stated that it was as least as likely as not that the Veteran’s cholangiocarcinoma was related to his service in Vietnam, specifically to the likelihood of his exposure to and infection from liver flukes and his presumptive exposure to Agent Orange. Specifically, the physician noted that symptoms of liver fluke may have been obscured by his malaria and liver fluke is frequently asymptomatic. She noted that while there is no evidence of liver fluke on the Veteran’s bile duct slides that were reviewed for the October 2009 VA medical opinion, this does not preclude liver fluke involvement in other areas of the bile ducts, citing other examples in previous examinations where the Veteran’s malaria and cholangiocarcinoma were not seen in bile duct slides either. Thus, because parasitic flatworms, including a carcinogenic liver fluke, are and have been endemic in Vietnam and were widespread during the Vietnam War, it is at least as likely as not that the Veteran was exposed to liver flukes in Vietnam and it is at least as likely as not that he incurred a liver fluke infection in service. In addition, the July 2015 private physician opined that although VA has not found an association between Agent Orange exposure and liver cancer, the American Cancer Society stipulates that more research must be done before this is a clearly irrefutable fact. The physician cited the American Cancer Society in noting that “few studies have looked at a possible link between Agent Orange exposure and other cancers, including cancers of the…liver and bile ducts.” Thus, the physician opined, because Agent Orange is cleared from the body through the liver system and thereby places Vietnam veterans, such as this Veteran, at risk for developing liver tumors, it is at least as likely as not that the Veteran’s cholangiocarcinoma is etiologically related to his exposure to Agent Orange. Without being able to examine the Veteran, the rationale was complete, thorough and had logical flow and is therefore afforded substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The August 2018 VA hepatologist, alternatively, provided a negative medical opinion. He noted that the most comprehensive assessment to date from 2016 found an association between the dioxins of Agent Orange and cholangiocarcinoma in rats but not in humans and that because rats are not humans, an argument cannot be made that there is a 50 percent chance or greater that Agent Orange exposure lead to the Veteran’s cholangiocarcinoma. Regarding the liver fluke, the VA hepatologist noted that there is a strong link between liver fluke infection and the development of cholangiocarcinoma and there is substantial support of this in the literature. However, a small study suggests a high rate of infection in those who ingested raw or undercooked fish while in Vietnam. Without being able to examine the Veteran, the hepatologist assessed the Veteran’s odds of having a liver fluke infection based on the results of the small study previously referenced, which was a twelve percent prevalence. Balancing this low prevalence against the multiple other risk factors for developing cholangiocarcinoma, he did not believe it was at least a 50 percent chance or greater that the Veteran had liver fluke and that it lead to his cholangiocarcinoma. The above evidence reflects that there are two highly probative medical opinions regarding the cause of the Veteran’s death, one weighing in favor of the claim and one weighing against. The evidence is thus at least evenly balanced as to whether the cause of the Veteran’s death, a type of liver cancer, cholangiocarcinoma, is related to either Agent Orange exposure or in-service liver fluke infection. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for cause of death is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel