Citation Nr: 18119298 Decision Date: 07/18/18 Archive Date: 07/18/18 DOCKET NO. 17-28 036 DATE: July 18, 2018 ORDER The claim of entitlement to service connection for the cause of the Veteran's death is reopened. Service connection for the cause of the Veteran’s death is granted. The appeal for Death and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. Service connection for the cause of the Veteran’s death was initially denied in a May 2004 rating decision on the basis that there was no nexus between the disability that caused his death and his service-connected hepatitis C or his active military service. The appellant did not appeal this decision. 2. Evidence received since the May 2004 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran’s death. 3. The primary cause of the Veteran’s death was cholangiocarcinoma. 4. There is a causal link between the Veteran’s service-connected hepatitis C and cirrhosis of the liver and his cholangiocarcinoma. 5. The grant of service connection for the cause of the Veteran’s death is a full grant of the benefits sought on appeal, requiring dismissal of the claim for benefits under 38 U.S.C. § 1318. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 101, 1110, 1310, 5107; 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.102, 3.303, 3.310. 3. The appeal for Death and Indemnity Compensation benefits under 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. §§ 1318, 7104; 38 C.F.R. §§ 3.22, 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. from July 1968 to April 1971 and from February 1976 to March 1979. He died on December [redacted], 2002, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 decision issued by the Department of Veterans Affairs (VA). In the May 2017 substantive appeal (via VA Form 9), the appellant requested a hearing before a Veterans Law Judge (VLJ). In January 2018, the appellant withdrew the hearing request. 38 C.F.R. § 20.704(e). The appeal was last adjudicated in an April 2017 statement of the case (SOC). The appellant submitted new and pertinent medical evidence in January 2018. A waiver of initial consideration of this evidence by the agency of original jurisdiction (AOJ) was included with the submission. 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. Service connection for the cause of the Veteran’s death was denied in a May 2004 rating decision on the basis that there was no nexus between the disability that caused his death and his service-connected hepatitis C or his active military service. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The appellant did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In January 2018, the appellant submitted a private medical nexus opinion that found a causal connection between his service-connected hepatitis C and cirrhosis of the liver and the disability that caused his death. As this evidence was not before VA or considered in the prior denial, it is new. As this evidence relates to a nexus between the Veteran’s service-connected disabilities and the disability that caused his death, it directly addresses an unestablished fact necessary to establish the claim and, therefore, it is material. Accordingly, new and material evidence has been received. The claim of entitlement to service connection for the cause of the Veteran’s death is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). The Board will proceed by adjudicating the reopened claim on the merits. As it is awarding the full benefit sought on appeal, the appellant is not prejudiced by this action. 2. Entitlement to service connection for the cause of the Veteran’s death. The appellant seeks Death and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran’s death. She asserts that the cholangiocarcinoma that caused his death is secondary to his service-connected hepatitic C and/or cirrhosis of the liver or, alternatively, that it is related to exposure to Agent Orange from service in the Republic of Vietnam. For the reasons that follow, the Board finds that service connection for the cause of the Veteran’s death is warranted. DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. 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 service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. Id. § 3.312(b). A service-connected disability will be considered a contributory cause of death where it contributed substantially or materially to cause death; it combined to cause death; or it aided or lent assistance to the production of death. Id. § 3.312(c). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. VA’s regulatory framework contains provisions relating to exposure to Agent Orange, see 38 C.F.R. §§ 3.307(a)(6), 3.309(e); however, the Board is granting this benefit based on a secondary theory of entitlement, and further discussion of those regulations is not needed. Preliminarily, the Board notes that the evidence shows the appellant is the “surviving spouse” of the Veteran as defined by VA law and regulations. 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.1(j), 3.50, 3.52-3.55. This fact is not in dispute and requires no further discussion. The appellant is eligible to receive the DIC benefits she seeks. 38 U.S.C. § 1310. The Veteran’s death certificate identifies his immediate cause of death as cholangiocarcinoma. VA treatment records show he underwent a percutaneous liver biopsy in February 2001. Analysis of the specimen produced a diagnosis of well differentiated cholangiocarcinoma. The disease was treated with chemotherapy; however, the efforts were not successful. VA continued to follow him and treat the disease through his death. A review of the Veteran’s VA Compensation and Pension records confirms that he was service-connected for hepatitis C and cirrhosis of the liver. As noted above, the appellant contends that the cholangiocarcinoma which produced his death was secondary to his hepatitis C and cirrhosis of the liver. The appellant’s assertions in this regard are attributed no weight as she is not competent to render an etiological opinion because she lacks the requisite medical training and expertise. 38 C.F.R. § 3.159(a)(1), (2); Jandreau v. Nicholson, 492 F.3d 1372 n.4 (Fed. Cir. 2007). The competent nexus evidence of record consists of an October 2002 letter from the Veteran’s treating VA physician, a November 2002 medical opinion by a Rating Board Specialist, and a January 2018 opinion by a private physician. In October 2002, the Veteran’s treating VA physician, Dr. S.B., wrote that the development of cholangiocarcinoma has been related to chronic inflammation of the gall bladder or biliary tract, i.e., chronic gallstone, cholecystitis, and sclerosing cholangitis. She noted that no reports indicate that hepatitis is a risk factor for the development of cholangiocarcinoma. In November 2002, the Rating Board Specialist, Dr. M.K., wrote that there is a strong association between hepatitis C and hepatocellular carcinoma; however, the Veteran’s cholangiocarcinoma is an extremely rare form of liver cancer with a less clear association. In the U.S., the strongest risk factors for cholangiocarcinoma are primary sclerosing cholangitis, ulcerative colitis, choledochal cysts, and thorotrast. In reviewing medical literature, Dr. M.K. only found one study reporting an association between hepatitis C and cholangiocarcinoma. In the case-controlled study by Donato, et. al., the authors found a 10-fold increased likelihood of hepatitic C infection among patients with intrahepatic cholangiocarcinoma compared to controls. Dr. M.K. also noted that since the ability to test for hepatitis C has only been available for the prior 10 years or so, establishing or refuting hepatitis C as a risk factor is problematic. Dr. M.K. concluded that although it is possible that the Veteran’s tumor could be related to hepatitis C, he possessed none of the other risk factors for cholangiocarcinoma and given the limited data it is impossible to say whether they are at least as likely as not related. In January 2018, Dr. J.B. wrote that cholangiocarcinoma is the most common cancer of the biliary tract; however, it is extremely rare. The results of a number of studies have shown a clear correlation between the hepatitis C virus (HCV) and the future development of cholangiocarcinoma. This direct involvement is reflected by the fact that components of the HCV virus itself have been demonstrated in cholangiocarcinoma tumors. In general, Dr. J.B. explained the effects of HCV as follows: The HCV induced liver infection and inflammation that slowed bile flow. The body defense mechanisms failed to heal these liver injuries. The healing process itself caused scarring of the liver which resulted in cirrhosis and it also produced bioactive substances that were cancer promoting. Dr. J.B. also related that the Veteran’s exposure to TCDD – a chemical herbicide agent – and obesity were also contributory risk factors. Dr. J.B. concluded that the Veteran’s developing cholangiocarcinoma was directly related to his contracting the HCV infection during military service and the subsequent cirrhosis. Dr. J.B. noted that the progression of these liver diseases was also facilitated by exposure to the TCDD toxin and obesity. Based on a review of the evidence, the Board finds there is a reasonable basis to conclude the Veteran’s cholangiocarcinoma was caused by his service-connected hepatitis C and cirrhosis of the liver. The competent nexus evidence shows that the medical community’s knowledge of a connection between hepatitis C, cirrhosis of the liver, and cholangiocarcinoma has evolved over time. As suggested by Dr. M.K. in her November 2002 opinion, this is likely because of the relative recency of being able to test for hepatitis C, itself. The Veteran’s treating physician, Dr. S.B., wrote in October 2002 that hepatitic C was not considered a risk factor; however, in November 2002, Dr. M.K., wrote that there was one medical study that made a connection. Nonetheless, it appears Dr. M.K. was uncomfortable concluding that nexus was at least as likely as not based only on a single study and no other risk factors. Sixteen years later in 2018, Dr. J.B. has explained that there are now numerous medical studies that provide a causative link between HCV and cholangiocarcinoma; while not noted above, he did provide citations to support this assertion. Furthermore, Dr. J.B. described the general process for how HCV produces cirrhosis of the liver and ultimately is a risk factor for cholangiocarcinoma. The Board acknowledges that Dr. J.B. also identified the Veteran’s exposure to TCDD and his obesity as contributory factors; however, his opinion was not predicated on those factors. Given the forgoing, the Board finds that the opinion of Dr. J.B. outweighs the opinions of Drs. S.B. and M.K. because of the depth of his rationale and his knowledge of more recent medical literature. In sum, the Veteran’s death certificate shows the primary cause of death was cholangiocarcinoma. His medical records confirm a diagnosis of this disease and the competent evidence of record weighs in favor of a nexus between the disease and his service-connected hepatitis C and cirrhosis of the liver. Accordingly, service connection for the cause of the Veteran’s death is warranted. 3. Entitlement to Dependency and Indemnity Compensation benefits pursuant to 38 U.S.C. § 1318 38 U.S.C. § 1318 provides for DIC benefits in the same manner as if the Veteran’s death was service-connected. It is considered a lesser benefit than that available under 38 U.S.C. § 1310. Above, the Board granted DIC benefits under § 1310. Accordingly, the greater benefit has been awarded, and no additional benefit, monetary or otherwise, can be gained under § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (only if an appellant’s claim for service connection for the cause of the Veteran’s death under § 1310 is denied does VA have to consider an appellant’s DIC claim under § 1318). The claim of entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 has been rendered moot and, therefore, the claim must be dismissed. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel