Citation Nr: 20045281 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 15-39 478 DATE: July 8, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. FINDING OF FACT The Veteran’s death was not etiologically related to service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1954 to July 1964 and from July 1968 to June 1974. He died in May 2014; the Appellant is his surviving spouse. This case returns to the Board of Veterans’ Appeals (Board) following a remand to the agency of original jurisdiction (AOJ) in March 2020. The AOJ substantially complied with the Board’s remand instructions and the claim is ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for the cause of the Veteran’s death The Appellant attributes the Veteran’s death from cholangiocarcinoma (bile duct cancer), multiple organ failure, and cardiopulmonary arrest to herbicide agent exposure during service. She contends cholangiocarcinoma is a type of soft tissue sarcoma for which presumptive service connection should be granted. She also argues the Veteran’s service-connected hypertension may have caused or contributed to his death. After careful review, the Board finds that service connection for the cause of the Veteran’s death is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection may also be established on a presumptive basis for certain diseases, such as soft tissue sarcoma, which are associated with exposure to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA regulations provide that veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307(a)(6). Only the specific diseases listed under 38 C.F.R. § 3.309(e) are subject to presumptive service connection on this basis. Nevertheless, a claimant may establish service connection for an unlisted disability on a direct basis by showing proof of causation through competent evidence. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Dependency and indemnity benefits are payable to a surviving spouse, child, or parent where a deceased veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The deceased veteran’s death will be considered to have been due to a service-connected disability when the evidence establishes that the disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributes substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. Id. § 3.312(c). At the time of his death, the Veteran was service-connected for hypertension, arthritis of the thoracic spine, a benign cyst on the left femur, and residuals of a tonsillectomy. His death certificate identifies the following causes of death: cardiopulmonary arrest (immediate cause), renal failure, hepatic failure, and cholangiocarcinoma (underlying cause). It lists no other significant conditions contributing to death. Medical records reflect that he was diagnosed with cholangiocarcinoma in May 2014, after being admitted to a non-VA hospital with jaundice, abdominal pain and a fever. He died shortly thereafter. First, the Board has considered whether service connection for cholangiocarcinoma is warranted on either a presumptive or a direct basis. As the Board noted in a previous remand, the record shows the Veteran had qualifying service in Vietnam under 38 C.F.R. § 3.307(a)(6) and is presumed to have been exposed to herbicide agents. However, cholangiocarcinoma is not one of the 14 diseases associated with herbicide agents listed under 38 C.F.R. § 3.309(e). In August 2019, a VA examiner explained that cholangiocarcinoma is not a soft tissue sarcoma. Instead, it is a type of adenocarcinoma originating in the liver and extrahepatic bile ducts. The August 2019 examiner also found, based on current medical literature, that cholangiocarcinoma is not associated with herbicide agent exposure. In a December 2019 addendum, the same examiner further explained that cholangiocarcinoma is histologically distinct from soft tissue sarcoma. Unlike cholangiocarcinoma, sarcomas are a rare group of malignant tumors comprising less than one percent of all adult malignancies. The examiner also noted that cancers of the gastrointestinal system had been extensively studied in Vietnam veterans and other groups exposed to herbicide agents. These studies revealed no significant link between exposure and any gastrointestinal cancers. A second VA examiner reached the same conclusions in April 2020. The April 2020 examiner determined that cholangiocarcinoma is not a soft tissue sarcoma or one of the other listed diseases subject to presumptive service connection. Citing medical literature from Mayo Clinic and other sources, the April 2020 examiner found no causal relationship between cholangiocarcinoma and herbicide agents, Agent Orange, or its main ingredient, dioxin. The examiner concluded it was less likely than not that the Veteran’s cholangiocarcinoma had its onset in service or was directly related to service. The April 2020 medical opinion is based on relevant medical literature, as well as a thorough review of the record, including medical reports dating back to 1954 and lay statements. It is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds no competent evidence linking the Veteran’s cholangiocarcinoma to herbicide agents or to any other specific in-service cause. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (lay evidence alone is not sufficient to resolve medically complex issues of diagnosis and causation). Service connection for the underlying cause of the Veteran’s death has not been established on either a presumptive or a direct basis. Combee, 34 F.3d at 1042. Next, the Board has considered whether the Veteran’s service-connected hypertension caused or contributed to his death. After reviewing the available medical records, the August 2019 examiner found that the Veteran was treated for hypertension for many years “with reasonable control.” He concluded that hypertension was simply a comorbid condition, it was not the primary cause of the Veteran’s death, and it did not materially contribute to his death. In December 2019, the same examiner added that the Veteran was diagnosed with hypertension in 1971 and had been on medication since 1973. His hypertension followed the normal course of the disease and did not contribute to his death from cholangiocarcinoma. The examiner also clarified that “cardiopulmonary arrest” is a nonspecific term meaning the heart stopped. He concluded that although the death certificate lists cardiopulmonary arrest as the immediate cause of death, the Veteran’s heart ultimately stopped due to multiple organ failure due to cholangiocarcinoma. This opinion regarding the Veteran’s service-connected hypertension is well-reasoned, consistent with the record, and highly probative. Nieves-Rodriguez, 22 Vet. App. at 304. The Board finds no competent evidence establishing hypertension as either a principal or contributory cause of death. See Kahana, 24 Vet. App. at 435. In sum, the preponderance of evidence is against service connection for the cause of the Veteran’s death. As such, the benefit-of-the-doubt rule is not applicable in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, Associate 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.