Citation Nr: 18101024 Decision Date: 04/26/18 Archive Date: 04/26/18 DOCKET NO. 16-50 314 DATE: April 26, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 0 ORDER Entitlement to service connection for cholangiocarcinoma is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to service connection for the cause of death is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran had cholangiocarcinoma during the pendency of his claim; he was presumptively exposed to herbicide agents during his honorable service in the Republic of Vietnam and was at least as likely as not exposed to parasites associated with cholangiocarcinoma during his service in Southeast Asia; it is at least as likely that his diagnosed cholangiocarcinoma was etiologically related to his active service. 2. The Veteran’s cholangiocarcinoma was the cause of his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cholangiocarcinoma have been satisfied. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for the cause of death have been satisfied. 38 U.S.C. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable service from October 1967 to October 1969 including service in the Republic of Vietnam. He died in July 2015 during the pendency of his claim of entitlement to service connection for cholangiocarcinoma. (He had filed a Notice of Disagreement with the November 2014 rating decision denying the claim, but no statement of the case had yet issued.) The Appellant, the Veteran’s wife, filed a claim of entitlement to Dependency and Indemnity Compensation (DIC) and to accrued benefits in July 2015. See 38 C.F.R. § 3.1010(c)(2) (“a claim for accrued benefits…by an eligible person…is deemed to include a request to substitute if a claim for periodic monetary benefits….was pending before the agency of original jurisdiction…when the claimant died.”). The RO determined that the Appellant was a valid substitute claimant. See September 2015 Notification Letter. This designation as a substitute claimant results in certain favorable procedural benefits over a claim for accrued benefits. Compare 38 C.F.R. § 3.1000(a) (decision for accrued benefits must be “based on evidence in the file at date of death”) with 38 C.F.R. § 3.1010(f)(3) (noting right of substitute claimant to submit additional evidence after the original claimant’s death). Therefore, the Board will consider evidence associated with the claims file after the Veteran’s death including the March 2017 Independent Medical Opinion submitted by the Appellant’s representative in April 2017. 1. Entitlement to service connection for cholangiocarcinoma. During his life, the Veteran asserted entitlement to service connection for cholangiocarcinoma including as a result of exposure to herbicide agents during his service in the Republic of Vietnam during the Vietnam Era. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). Cholangiocarcinoma is not a condition presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not warranted in this case. However, where presumptive service connection is not warranted, VA must still consider entitlement to service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1040 (Fed. Cir. 1994). Here, VA has previously conceded the Veteran’s presence in the Republic of Vietnam and, so, his presumed exposure to herbicide agents. There is no evidence to rebut the presumptions that the Veteran was exposed to herbicide agents. An in-service event is established. The Board notes that the record also contains the credible testimony and statements of the Appellant regarding the Veteran’s likely exposure to parasites endemic to Southeast Asia during his combat service. See, e.g., March 2017 Spouse Statement (“on many occasions he and his fellow soldiers would drink water wherever they could find it, including water from rivers and streams. He also told me that in order to survive they would eat vegetation and fish…[while] they had to hide out for many hours due to an attack or ambush.”); March 2018 Board Hearing Tr. at 8 (testifying to the Veteran’s ingestion of water and fish from the local environment during combat missions). Similarly, the medical record and death certificate conclusively establish that the Veteran had cholangiocarcinoma during the appeal period. Therefore, the only remaining element is a causal nexus between the Veteran’s active service and his later cholangiocarcinoma. VA had not provided the Veteran with a VA examination or opinion to establish the etiology of his condition prior to his death. VA had also not obtained a nexus opinion during the pendency of this appeal. However, there is one opinion of record addressing the issue and the medical evidence available to the Board is of sufficient probative weight to decide the claim, so remand for an additional opinion is not necessary. First, although cholangiocarcinoma is not specifically listed among the conditions presumptively associated with exposure to herbicide agents, the National Academy of Science's Institute of Medicine's "Veterans and Agent Orange: Update 2014" discussed the biologic plausibility of an association between exposure to herbicide agents and liver disease. The discussion noted that studies showed that the exposure of rats to the chemicals in herbicide agents produced changes in the liver including “bile duct hyperplasia [and] bile duct cyst”. See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2014 (2016) at 878 (concluding that the studies did not indicate biological plausibility of a link between herbicides and diseases such as cirrhosis of the liver). The Update 2014 also discussed other studies that revealed a possible effect of the chemicals in herbicide agents on the way genes associated with human cholangiocarcinoma were expressed. Id. at 371. The report concluded that “additional literature [since the Update 2010] provides modest evidence of excess liver cancer among Korean veterans and among Chinese foundry workers, although confounding remains a concern.” Id. at 372. In short, the Veterans and Agent Orange: Update 2014 provides some evidence of the biological plausibility of a link between exposure to herbicide agents and the development of cholangiocarcinoma (e.g., the chemicals found in herbicide agents have caused bile duct hyperplasia and bile duct cysts in animal studies which can then cause cholangiocarcinoma), but concluded that determination of whether an association existed was not possible based on the current evidence. In April 2017, the Appellant’s representative submitted a March 2017 private independent medical opinion (IMO). The IMO provides a positive nexus opinion linking the Veteran’s cholangiocarcinoma to his active service, including as due to some combination of exposure to herbicide agents and/or parasitic infection. The expert noted that the herbicide agents used in Vietnam are “well-known human carcinogen[s]” and, given the relevant medical literature and the facts of this case, it is more likely than not the Veteran’s exposure to herbicide agents caused or contributed to his development of cholangiocarcinoma. His opinion is consistent with the biological plausibility of the connection discussed in the Veterans and Agent Orange: Update 2014 (“the Update”). Specifically, the Update noted that the chemicals found in herbicide agents have caused bile duct hyperplasia and bile duct cysts in animal studies which, as the expert notes, are one of the major risk factors for developing cholangiocarcinoma. He also discussed the fact that the lack of conclusive epidemiological research linking cholangiocarcinoma to herbicide agents is because the cancer is a relatively unknown illness. Indeed, the Update notes there is insufficient evidence to determine whether there is a link between exposure to herbicide agents and liver cancer (a more common, but still rare, cancer). The private expert also explains that, given the Veteran’s reported eating of fish and drinking of water from local waterways, the Veteran had “a high risk of exposure to parasitic infections in Vietnam through consumption of tainted fish-water, etc.” The expert provided an accurate overview of the record and a detailed discussion of his reasoning for his positive nexus opinion. His opinion that a parasitic infection may also have caused or contributed to the Veteran’s condition also has substantial support. The expert discussed several important points, including: (1) that the lack of presentation in service or shortly after service is consistent with the fact that cholangiocarcinoma is a slow-growing cancer that does not spread quickly; (2) that cholangiocarcinoma is a major public health problem in Southeast Asia where the prevalence of that cancer is the highest in the world due, in large part, to parasitic infections with liver flukes which are native to region; (3) the parasitic infection can often go undetected even after having caused cholangiocarcinoma because the cancer results in blocked bile ducts which “locks in a still-thriving colony of liver flukes, preventing their detection”; (4) parasitic infection with liver flukes is one of the major risk factors for developing cholangiocarcinoma; and (5) one of the first visible signs of the parasitic infection is jaundice, which was a “chief complaint” of the Veteran during his final illness. Together with other facts and medical principles discussed by the expert, the expert’s analysis establishes that it is likely that the Veteran was infected with parasites during his service in Vietnam and the parasitic infection, possibly in combination with exposure to herbicide agents, more likely than not caused his cholangiocarcinoma. The IMO contains a convincing rationale based upon an accurate medical history and links the facts of this case to the relevant medical principles. Therefore, the opinion is entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent medical opinion evidence against the claim. The evidence is at least in equipoise on each of the factual issues with respect to the claim at issue; consequently application of the benefit of the doubt doctrine requires the doubt be resolved in the appellant’s favor. Gilbert, 1 Vet. App. at 53-56. The claim of entitlement to service connection for cholangiocarcinoma is granted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, and 3.309(e). 2. Entitlement to service connection for the cause of death. The Appellant claims entitlement to service connection for the cause of the Veteran’s death. During his life, the Veteran was service-connected for PTSD (rated as 100 percent disabling), hearing loss (rated 50 percent disabling), tinnitus (rated 10 percent disabling), and back scars (rated noncompensable). In addition, the Veteran’s claim of entitlement to service connection for cholangiocarcinoma was pending at the time of his death and, as discussed above, is being granted. To establish entitlement to service connection for the cause of the Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The Veteran’s Death Certificate establishes that the primary cause of his death was cholangiocarcinoma. Because his cholangiocarcinoma has been service-connected after his death, the criteria for entitlement to service connection for cause of death have been met.   The evidence is at least in equipoise. Entitlement to service connection for the cause of the Veteran’s death is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel