Citation Nr: 20003113 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 16-19 155A DATE: January 15, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. REMANDED Entitlement to nonservice-connected death pension benefits is remanded. FINDING OF FACT The Veteran’s fatal bile duct cancer was not etiologically related to his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5103A, 5107; 38 C.F.R. §§ 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1965 to August 1967, to include foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and the Vietnam Campaign Medal. He died in September 2013, and the appellant is his surviving spouse. See May 2016 Supplemental Statement of the Case (SSOC). This appeal was remanded in January 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268 (1998). In the introduction to the January 2019 remand, the Board also indicated that there was a separate appeal stream pending for multiple service connection claims for accrued benefits purposes which was awaiting the scheduling of a Travel Board hearing. Although the record reflects that these matters were addressed in an October 2016 Statement of the Case (SOC), a timely VA Form 9 was not submitted as to these matters. Accordingly, the Board’s January 2019 notation as to the status of that appeal was made in error, and there are no other appeal streams existing at this time. Cause of Death The appellant is pursuing service connection for the cause of the Veteran’s death. To establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to 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. For the 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. It must be shown that there were “debilitating effects” due to a service-connected disability that made the veteran “materially less capable” of resisting the effects of the fatal disease, or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Therefore, resolution of this appeal is two-fold: (i) Did a service-connected disability cause the Veteran’s death, or (ii) were the causes of his death entitled to service-connection. On the first point, the Veteran was not service-connected for any disabilities at the time of his death, such that the appeal cannot succeed on this basis. Rather, the Veteran’s death certificate identifies bile duct cancer as his immediate cause of death, absent any underlying conditions. The appellant contends that service connection is warranted for the Veteran’s bile duct cancer as being caused by herbicide exposure in Vietnam. In this respect, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Here, the record reflects that the Veteran served in the Republic of Vietnam from July 1976 to July 1977, such that herbicide exposure is presumed in this case. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307, 3.309. However, bile duct cancer is not among those diseases presumptively linked to herbicide exposure, such that service connection may not be awarded on a presumptive basis. Id. Moreover, the competent evidence weighs against a finding that the Veteran’s bile duct cancer was etiologically related to his in-service herbicide exposure. On this point, in a November 2019 Disability Benefits Questionnaire (DBQ), the reviewing physician concluded that the Veteran’s bile duct cancer was less likely than not incurred in or caused by his military service. By way of rationale, the physician observed that there was no evidence of any active liver complaints or diagnoses during service, and that the Veteran’s history of “infectious hepatitis” pre-dated service and was asymptomatic during active duty. The Veteran subsequently developed bile duct cancer with metastases decades after his military separation. This type of cancer has multiple known risk factors, including chronic liver disease, sclerosing cholangitis, and specifically identified genetic syndromes. However, herbicide exposure is not a known risk factor established by medical literature. Moreover, the Veteran had a distant history of “infectious hepatitis” prior to service, with documentation in the record as of 2001 for the presence of hepatitis B. He also had a history of alcohol abuse. Both hepatitis B and alcohol abuse increase the risk for accelerated liver injury/chronic liver disease, thereby increasing the risk for bile duct cancer. The physician reasoned that because the Veteran did not develop cancer until decades after service, herbicide exposure poses no known risk for bile duct cancer, and he demonstrated at least two known risk factors for chronic liver disease and related bile duct cancer, it “cannot be established” that the Veteran’s fatal cancer developed during or due to service, including due to herbicide exposure. The November 2019 opinion is competent and probative evidence against the claim. Notably, this opinion is derived from a detailed and well-reasoned assessment of the Veteran’s unique history, including his in-service exposure to herbicide agents and the nature and onset of his fatal cancer, also considering current medical literature. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). There is no indication that the physician was not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing his nexus opinion. Moreover, the examiner possesses the requisite expertise to render a medical opinion regarding the etiology of the Veteran’s bile duct cancer and had sufficient facts and data on which to base his conclusions. The record also contains a May 2016 VA opinion which supports the November 2019 physician’s overall conclusion. See May 2016 VA examination (concluding that bile duct cancer is not shown to be causally related to herbicide exposure); but see January 2019 Board decision (affording limited probative value to the May 2016 opinion). In contrast, the record contains two September 2013 private treatment letters which assert a nexus in this case. Specifically, physician K.G. concluded that it was “conceivable that [the Veteran’s] cancer may be a result of [in-service herbicide exposure.” Physician S.W. cited to this letter in noting that the Veteran’s oncologist, K.G., “felt that [his] cancer may very well be a result from the Agent Orange exposure he sustained during his service in the Vietnam War.” However, these opinions are afforded limited probative value, as they use speculative terminology and fail to provide any substantive rationales. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning); Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to “may or may not” is an insufficient basis for an award of service connection). The lack of rationale also renders it unclear whether these physicians considered the Veteran’s other risk factors and unique medical history. Briefly, the Board also acknowledges the appellant’s contention that a nexus is present in this case. However, the evidence does not establish that she possesses the requisite training or expertise to offer a competent medical opinion as to the etiology of the Veteran’s cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In considering and comparing this evidence, the Board finds the November 2019 medical opinion to carry the greatest probative value. The medical opinion report reflected consideration of the Veteran’s unique history, to include his exposure to herbicide agents, as well as the nature and onset of his fatal cancer and medical history of relevant risk factors, and contained a detailed and well-reasoned assessment applying the physician’s medical knowledge and current medical literature to the specifics of this case. In contrast, the speculative opinion of Dr. K.G. made no mention of the Veteran’s history of alcohol abuse and hepatitis B, and included no explanation for the conclusion that the Veteran’s cancer was conceivably a result of his Agent Orange exposure. In affording greatest probative value to the November 2019 negative opinion, it is thus found that the preponderance of the evidence weighs against the finding of a nexus between the Veteran’s bile duct cancer and his military service. Accordingly, the benefit-of-the-doubt rule is not for application and the appeal seeking service connection for the cause of the Veteran’s death is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the remaining appeal. Improved death pension is a benefit payable to the surviving spouse of a veteran of wartime service who has died of nonservice-connected disability. Basic entitlement exists if (i) the veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. §§ 3.23 and 3.24. 38 U.S.C. §§ 101, 1521(j); 38 C.F.R. § 3.3(b)(4). Thus, the prevailing question in this appeal is whether the appellant satisfies the net worth requirements to qualify for the requested benefits. The record indicates that the existing appeal was intimated by VA’s receipt of the Veteran’s death certificate and VA Form 21-686c, Declaration of Status of Dependents. In a November 2013 letter, the appellant was informed that the claim was denied due to an incomplete application. A completed application was not subsequently provided. Although participation in the development of a claim is considered a two-way street, the appellant has since indicated her clear belief that she has provided all requisite information to VA. See August 2016 VA Form 9 (“I have responded to all your correspondence [regarding] the income and net worth portion of my application”); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Her good faith belief that she has provided the requested information, coupled with her status as an unrepresented appellant, compels the Board to remand this appeal so that she may be afforded the additional opportunity to provide the necessary net worth information upon which to determine this claim. The matter is REMANDED for the following action: Provide the appellant with VA Form 21-524, Application for DIC, Survivors Pension, and/or Accrued Benefits, and request that she complete and submit this form, as well as any other documentation, detailing her current net worth and annual income. The appellant should be advised of precisely what information is still needed by the AOJ. She should be afforded a reasonable time in which to complete and submit this form. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.