Citation Nr: 18154670 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-08 543 DATE: November 30, 2018 ORDER The claim of entitlement to service connection for lung cancer is denied. The claim of entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had, at any time during the appeal, a current diagnosis of lung cancer. 2. The Veteran died in October 2015 from cholangiocarcinoma. 3. The most probative evidence of record reflects that the Veteran’s cholangiocarcinoma was causally related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for service connection for cause of the Veteran’s death are met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from October 1968 to June 1971, including service in the Republic of Vietnam. The Veteran passed away in October 2015 from cholangiocarcinoma. His surviving spouse has been substituted as the Appellant in the present case. 1. The claim of entitlement to service connection for lung cancer The Appellant contends that the Veteran is entitled to service connection for lung cancer. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2018); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The question for the Board is whether the Veteran had a current disability prior to his passing that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a diagnosis of lung cancer at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s medical records reflect a diagnosis of cholangiocarcinoma, but not a diagnosis pertaining to his lungs. Throughout chemotherapy, the Veteran’s lungs were noted to be clear and without rattle. His oncologist noted that his cancer had a metastatic pattern, but it was one that involved his liver. Multiple medical opinions from the Veteran’s oncologist and treating physician do not discuss a diagnosis of lung cancer. While the Veteran believed he had a diagnosis of lung cancer prior to his passing, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Based on the foregoing, the claim of entitlement to service connection for lung cancer is denied. The preponderance of the evidence is against the Appellant’s claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. The claim of entitlement to service connection for cause of death The Appellant contends that she is entitled to service connection for the Veteran’s cause of death. To establish service connection for the cause of a veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran passed away in October 2015 from cholangiocarcinoma (CAC), a rare cancer of the bile ducts. CAC is not a presumptive condition of herbicide agent exposure. The Veteran’s treatment records reflect chemotherapy to treat the cancer. The Veteran’s military personnel records confirm that he served in the Republic of Vietnam as a forward observer. He and the Appellant reported that the position required him to spend extensive time in the swamps of Vietnam. His service treatment records are silent with respect to complaints related to bile duct cancer during active duty. In December 2016, a VA examiner opined that the Veteran’s CAC was less likely than not related to his active duty service. The majority of the examiner’s opinion discussed an unconfirmed relationship between herbicide agent exposure and CAC, concluding that he could not opine on this specific etiological theory without resorting to mere speculation. The examiner then reported that there were numerous medical studies that provided a causative association between liver fluke infection and the development of CAC. He noted that the Veteran served in a region that had endemic infestation of waters and he believed that the Veteran “clearly could have ingested the parasite in water or improperly cooked fish.” Patients infected with liver flukes can be asymptomatic and still harbor the disease as well as produce granulin which is associated with CAC. The examiner acknowledged that the Veteran had plausible exposure to a parasitic infection that showed a strong relationship in the development of CAC. Unfortunately, as medical records were scant at the time of review, the examiner could not rule out the existence of other risk factors for the rare cancer. In January 2017, the Veteran’s treating oncologist provided an etiological opinion with respect to the Veteran’s CAC, which was endorsed by the Veteran’s longtime physician in March 2017. The Veteran’s oncologist stated that the Veteran died as a result of progressive CAC. The oncologist noted that the Veteran served as a forward observer in Vietnam in areas of swamp and endemic liver fluke infestation. The Veteran was noted to have no other additional risk factors for the development of CAC. As such, it was more likely than not that the Veteran’s exposure to liver flukes in Vietnam caused his subsequent CAC. In cases where there are conflicting statements or opinions from medical professionals, it is within the Board’s province to weigh the probative value of those opinions. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings. See Sklar v. Brown, 5 Vet. App. 140 (1993). So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa. See 38 U.S.C. § 5125; White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001). Regardless of the source, an examination report must minimally meet the requirement of being sufficiently complete to be adequate for the purpose of adjudicating the claim. See 38 U.S.C. § 5125; 38 C.F.R. § 4.2. In the instant case, the December 2016 VA examiner did not have access to the bulk of the Veteran’s oncology records, including the more thorough opinion of his oncologist and physician. The examiner himself stated that the opinion should be revisited if any medical records become available. The conclusion reached by the examiner was a “difficult case with extremely limited medical information,” and that provided the basis for the negative opinion. In contrast, the Veteran’s treating oncologist provided a sufficient positive nexus statement that considered both the nature of the Veteran’s service in Vietnam as well as his complete medical history. Accordingly, the Board affords this opinion significantly more probative weight as it is based on a more thorough medical record. As such, the preponderance of the probative evidence of record weighs in favor of an etiological relationship between the Veteran’s CAC, which was ultimately his cause of death, and active duty service. Accordingly, service connection for the cause of the Veteran’s death is warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel