Citation Nr: 1807739 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-21 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for liver cancer, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Alexandra M. Jackson, Attorney WITNESSES AT HEARING ON APPEAL The Appellant and her son ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to January 1972 with service in the Republic of Vietnam. He was awarded the National Defense Service Medal, Vietnam Service Medal with two Bronze Service Stars, and the Republic of Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran raised a motion to advance on docket due to serious illness in a May 2017 statement. The undersigned Veterans Law Judge (VLJ) is granting that motion and advancing the appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran died in June 2017. The appellant is the Veteran's surviving spouse. In August 2017, the appellant submitted a Request for Substitution of Claimant upon Death of Claimant form. In an August 2017 rating decision, the RO determined the appellant is a proper substitute under 38 C.F.R. § 3.1000(a)(1)(i). In light of this determination, the Board will proceed to adjudicate the merits of this appeal as the appellant now steps into the shoes of the Veteran. In October 2017, the appellant testified at a videoconference hearing before the undersigned VLJ. A transcript of that hearing is of record. In December 2017, the appellant and her representative submitted additional evidence along with a waiver of RO consideration. The Board will consider the new evidence. See 38 C.F.R. § 20.1304(c). FINDING OF FACT The Veteran's liver cancer was caused by exposure to herbicides, including Agent Orange. CONCLUSION OF LAW The criteria for service connection for liver cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that service connection is warranted for the Veteran's liver cancer as the result of Agent Orange exposure when he served in the Republic of Vietnam. See October 2017 Board Hearing Transcript. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In addition, a veteran who, during active service, served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309(e) if the disability manifested to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii). For disabilities not presumed by regulation to be due to exposure Agent Orange, the Veteran may still establish service connection by showing that any such disability is, in fact, directly and causally linked to Agent Orange exposure, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As an initial matter, the Board notes that diagnoses and treatment for hepatocellular carcinoma, chronic hepatitis c, and non-alcoholic liver cirrhosis, including evaluations for a liver transplant, are confirmed by post-service treatment records and the Veteran's death certificate. Service personnel records document service in the Republic of Vietnam, and exposure to an herbicide, including Agent Orange, was conceded in an April 2011 rating decision that granted the Veteran's claim for service connection for ischemic heart disease. As liver cancer is not a disease presumed by regulation to be due to exposure to an herbicide, the outcome of the case, therefore, turns on whether liver cancer is in fact, directly and causally linked to herbicide exposure. In addressing why the Veteran's liver cancer is related to service, the Board considers the December 2017 private medical opinion to carry the greatest probative weight of the entirety of the evidence of record. The private clinician opined that the Veteran's liver cancer was related to service and reasoned that the chemicals that constitute Agent Orange, particularly dioxin (TCDD) has been shown to be a carcinogen. He explained that several epidemiologic and toxicologic studies have suggested an association between TCDD and many types of malignancies including liver cancer and that the carcinogenicity of TCDD has been demonstrated in laboratory animals, as documented in a 2000 U.S. Environmental Protection Agency study. The Board finds this opinion to be highly probative, as it reflects consideration of all relevant facts, as evidenced by citations to relevant items from the claims file and peer-reviewed medical literature, and is supported by a detailed rationale. The clinician's conclusion is further supported by his careful assessment of the Veteran's specific history and findings that accepted medical literature indicates that TCDD, a contaminant in Agent Orange, is a known carcinogenic and associated with liver malignancies. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. In so finding, the Board acknowledges that the grant of service connection for liver cancer due to Agent Orange exposure herein renders other theories of service connection moot, to include as due to hepatitis C secondary to malaria treatment. Resolving doubt in the Veteran's favor, the Board finds that the Veteran's liver cancer was caused by exposure to herbicides, including Agent Orange, and the claim of entitlement to service connection for liver cancer is granted. 38 U.S.C. §§ 1110, 5107 (2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for liver cancer is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs