Citation Nr: 21074887 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-51 591 DATE: December 16, 2021 ORDER Entitlement to service connection for cause of death is denied. Entitlement to Dependency and Indemnity Compensation benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in January 2012; his death certificate lists the primary cause of death as cholangio carcinoma (CCA); an underlying cause or other significant condition is not noted. 2. The Veteran's CCA was not manifested in service, or in the first post-service year, and is not shown to have been etiologically related to his service. 3. The Veteran had established service connection for residuals of a right knee injury; a service-connected disability is not shown to have caused or contributed to cause his death. 4. At the time of his death, the Veteran was not in receipt of, nor entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or for a period of 5 or more years immediately following discharge from service; he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.303, 3.312. 2. The legal requirements for establishing entitlement to DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1964 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 Department of Veterans Affairs (VA) rating decision which denied service connection for cause of death and dependency and indemnity compensation under 38 U.S.C. § 1318. In March 2019, these matters were remanded for further development [to request outstanding treatment records and obtain an addendum medical opinion from an infectious disease specialist.] As an initial matter, the Board finds substantial compliance with the March 2019 remand directives. The April 2020 consulting provider explained that an infectious disease expert was deemed unavailable. In order to comply with the remand directive (requesting an infectious disease expert), the consulting VA provider discussed the case in detail with an infectious disease expert, who reportedly practiced in the field for twenty-five years with a particular interest in virology/parasitology. 1. Entitlement to service connection for cause of death is denied. Legal Criteria To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially 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 substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 Factual Background The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis of cancer. The Veteran's STRs note a March 1967 diagnosis of acute pharyngitis, an August 1967 cold, and a December 1967 symptom of diarrhea for three days during the Veteran's service in Thailand. The September 1968 separation examination notes common colds and a fifty-pound weight gain from January to September 1968. A November 2008 private treatment record notes a June 2008 prostatectomy. May, July, and August 2011 private treatment records, for provider M.P., note the Veteran's unresectable CCA, a May 2011 biopsy, and laboratory tests. A July 2011 private treatment record notes an unsuccessful extraction and a plan to followup with chemotherapy. A July 2011 private treatment record notes the Veteran's cancer spread to one of his ribs on the right side. In October 2014 correspondence, the appellant submitted an informal claim for Dependency and Indemnity Compensation (DIC) under 38 C.F.R. § 3.115 based upon her husband's service in Thailand during the Vietnam era and his death caused by CCA. An April 2015 private treatment record notes the Veteran's private oncologist's opinion that his type of cancer is extremely rare and the area where the Veteran was stationed during the Vietnam War has a high rate of occurrence of this malignancy. The doctor opined that it is not clear if his location during the Vietnam war is a direct cause of the cancer, but it is within the realm of possibility. In September 2015, the appellant submitted a formal Application for DIC 21-534EZ, a medical article, and a letter. The medical article noted that Thailand has the highest incidence of CCA in the world and identified a carcinogenic liver fluke, Opisthorchis viverrini, as a major risk factor for CCA. The article noted other risk factors for CCA as hepatitis C infection, liver cirrhosis, choledochal cysts, and inflammatory bowel disease. The article cited a National Institute of Health/National Center for Biotechnology Information article as the source of information. The appellant's September 2015 letter submitted argues that the Veteran's service in Thailand exposed him to river flukes, Opisthorchis viverrini, which are endemic to that region. She argues this exposure caused him to develop bile duct cancer many years later resulting in his death. She contended that the mechanism at work is chronic inflammation leading to oxidative DNA damage of the infected biliary epithelium and malignant transformation. She noted that Thailand is country with the highest incidence of CCA in the world as noted in her submitted scientific articles. She noted the rarity of CCA, the potential of asymptomatic/mild symptoms associated with initial infection, and cited a research article showing that Chi River basin is the epicenter of CCA in Northeast Thailand as nearly all persons infected with the liver fluke develop the cancer. The appellant noted her husband's inservice location at Royal Thai Air Base at Korat (RTAFB Korat) is located in the Chi River basin and cited to previous Board decisions that have resolved reasonable doubt in favor of Veteran's granting service connection for CCA based upon Vietnam service. She related that she attached a statement from the Veteran's treating oncologist. In November 2015 correspondence, the appellant stated that she is only claiming DIC benefits and noted her claim is not based on herbicide exposure as her husband served in Thailand as opposed to Vietnam. She related her theory of the case that her husband's cancer was caused by an infection by a river fluke in Thailand. She also noted a recent VA letter that failed to note various documents submitted by the appellant in support of her claim. On February 2016 VA examination, the consulting provider noted the Veteran's 2012 death certificate and his listed cause of death of CCA. The consulting provider opined that the Veteran's cause of death due to CCA was less likely than not incurred in or caused by an inservice injury, event, or illness. The provider noted a possible connection between liver flukes infestation and later development of CCA. The provider also noted that the vast majority of cases in the U.S. are idiopathic and not associated with any such infection. The examiner noted that the STRs are silent for infestation with liver flukes and the silence of postservice records showing the diagnosis of an infestation. Regarding the inservice symptom of diarrhea, the provider stated that this symptom is not indicative of a liver fluke infection/infestation. The provider determined that the more likely cause of CCA is idiopathic and not related to the Veteran's brief service in Thailand several decades prior. On her February 2017 notice of disagreement (NOD), the appellant argued that the Veteran's location inservice location in Thailand that has the highest rate of bile duct cancer in the world supports her claim. She also noted that bile duct cancer is rare in the U.S. as the river fluke and parasite are not endemic to this country. She argued that as the lingering infection in the bile duct is asymptomatic until inflammation occurs, and the condition becomes fatal. She noted that a study is not practical in this case as a small number of service members served in Thailand, but she related that at least one of the men stationed in Thailand did die of CCA. She argued that of the half a million people a year in the U.S. who die of cancer less than 3,000 die of bile duct cancer. In October 2017 correspondence submitted with her VA Form 9, the appellant noted her struggles obtaining a nexus opinion in this case due to the unique subject matter. She argued that the VA examiner opinion did not address the significant period of time the Veteran spent in Thailand, and focuses on CCA causes in the U.S. She argued that the examiner improperly relied upon the silence of STRs regarding diagnosis of a liver fluke infestation inservice as most people are asymptomatic prior to the development of the carcinoma. She contended that it is difficult to prove a disability is due to environmental causes and that the Veteran's risk factors and probability of developing the cancer should be reviewed in this case. In August 2019, the appellant authorized VA to obtain records for private medical providers with the initials D.B., M.P, C.S., J.S, and F.B. Records for M.P. were received. January 2020 correspondence informed the Veteran that Dr. D.B. and C.S.'s offices responded that no records were found. Dr. M.P.'s office responded that they required a fee to obtain records and VA is not authorized to pay a fee. The correspondence informed the appellant that no response was received from Dr. J.S., Dr. F.B., or Dr. M.P's office at that time, and she received a final opportunity to submit the Veteran's private treatment records. In February 2020, the appellant submitted with private medical treatment records, a statement from the Veteran prior to his passing. He wrote that he has CCA that metastasized on his top right rib. He reported a diagnosis of stage four cancer that will be treated with ten days of radiation followed by chemotherapy. He stated that there were no plans for surgery at this time as it likely would not help. In a February 2020 statement in support of claim, the appellant noted the Veteran's brave fight against bile duct cancer and detailed her struggles obtaining private treatment records. On April 2020 VA examination, the consulting provider, a medical doctor, noted that he consulted with an infectious disease specialist in preparing his medical opinion. The examiner opined the Veteran's CCA is less likely than not related to an inservice injury, event, or disease including his service in Thailand. The provider opined that that it is at least as likely as not that the etiology of the Veteran's CCA is chronic cholelithiasis. The examiner noted the three major liver trematodes/flukes, their prevalence in the far east, and the potential for adult flukes to remain in the bile duct for 26 years. The examiner noted that pathologic and clinical consequences of infection are related to the intensity and duration of cumulative infection. When symptoms of infection occur, they usually last two to four weeks with high levels of eosinophils and eggs generally being detectable in the stool after three to four weeks. The consulting provider noted that some variations in clinical presentations of clonorchiasis and opisthorchiasis may be observed in different geographic areas. Symptoms can occur late in the course of infection due to chronic mechanical injury and physical bile duct obstruction by the adult flukes, particularly in individuals with a heavy burden of adult worms. Symptoms can include fatigue, abdominal discomfort, anorexia, weight loss, dyspepsia, and diarrhea. The examiner noted that serious complications of chronic infection include CCA. These complications result from chronic irritation to epithelial cells which desquamate and proliferate eventually leading to hyperplasia, dysplasia, and fibrosis. Symptoms of CCA include jaundice, weight loss, epigastric pain, abdominal mass, and ascites. The provider noted that the mechanisms of carcinogenesis are uncertain. The provider also acknowledged the higher risk for CCA in northern Thailand, mortality most commonly occurring in males 40 to 65 years of age, and the highest risk strand of infection being o. viverrini. The examiner listed the risk factors of CCA. The provider noted the Veteran's self-limited bout of diarrhea inservice, the silence of the remaining STR's, and the Veteran's postservice diagnosis of CCA with no evidence of any liver flukes in the hepatobiliary system. The examiner noted that CCA due to liver flukes always results in liver flukes being present at the time of diagnosis. The Veteran did have evidence of gallstones, which based on radiological findings appear to be a chronic process. The examiner concluded that due to the absence of liver flukes and the presence of gallstones at the time of the diagnosis of CCA, the cause of the Veteran's CCA was chronic cholelithiasis. In May 2020 correspondence, the appellant contended that her husband's cancer was attributable to his service in Thailand. She related that no one in his family ever had cancer and there is a much higher risk of bile duct cancer in that area of Thailand. She noted her struggles with obtaining the Veteran's private treatment records. She also acknowledged the VA examiner opinions of record. Analysis As an initial matter, the Veteran established service connection for residuals of a right knee injury with an evaluation of 10 percent disabling. See May 1994 rating decision. The appellant has not argued, and the record does not indicate that this disability was etiologically related to the Veteran's cause of death. Furthermore, in November 2015 correspondence, the appellant noted that she is not arguing herbicide exposure as the Veteran served in Thailand, and after review of the record, the record does not raise herbicide exposure. Therefore, the Veteran's right knee injury and herbicide exposure will not be discussed further herein. Upon longitudinal review of the record, the Board finds that the most probative evidence is against a finding that the cause of the Veteran's death was etiologically related to his service. His CCA, the immediate cause of his death (without any other cause or contributing cause) was not manifested in service or within a year following his separation from service. Based on review of the private treatment records associated with the record, CCA was diagnosed in 2011, approximately 43 years after his separation from service. The most probative, competent (medical opinion) evidence of record in this matter is against a finding that the Veteran's death-causing CCA was etiologically related to service. In February 2016 and April 2020, consulting VA providers reviewed the record and opined (with rationale including citation to the medical evidence in the record and to and treatise evidence) that the Veteran's CCA was less likely than not etiologically related to the Veteran's service, to include exposure to river flukes in Thailand. The April 2020 VA consulting provider specifically acknowledged the appellant's contention that areas in the far east, including Thailand, have a higher risk of CCA associated with liver fluke infections. The 2020 provider noted that CCA due to liver flukes always results in liver flukes being present at the time of diagnosis. The 2020 provider also noted the Veteran's problems with gallstones and cited to radiological findings in the record to show that the gallstones were a chronic process experienced by the Veteran. The examiner conclusion that due to the absence of liver flukes and the presence of gallstones at the time of the diagnosis of CCA, the cause of the Veteran's CCA was chronic cholelithiasis. The 2020 provider consulted with a specialist in infectious diseases, reviewed the record, and his rationale that liver flukes are always present at the time of diagnosis of CCA if they were the cause addresses the medical articles submitted by the appellant. [The 2020 consulting provider opinion corroborates the 2016 consulting provider opinion noting a likely idiopathic etiology attributed to the Veteran's CCA.] The September 2014 private medical opinion noted the Veteran's stage IV CCA with extensive bone involvement, the Veteran's location in Thailand during the Vietnam war, but opined that it is not clear to the provider regarding the cause of the CCA (which comports with the Appellant's statements that she struggled to find a provider to opine on this specialized subject matter). See October 2017 correspondence. The Board acknowledges the appellant's sincere belief that her husband's death was related to his military service. The Board also acknowledges the appellant's argument that previous Board decisions have granted reasonable doubt in favor of veterans who served in Vietnam in cases involving CCA. See appellant's September 2015 Correspondence. However, the etiology of his death causing CCA (diagnosed more than four decades after separation from service) is a medical question, and her lay opinion is not competent evidence in the matter. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Furthermore, the Board decisions referenced by the appellant were not submitted and the Board is not able to distinguish the cases further (apart from the notable difference based on the facts related by the appellant that this Veteran served in Thailand as opposed to Vietnam and, in this case, there is no competent medical evidence linking the Veteran's CCA to his military service.) The Board notes that prior Board decisions are non-precedential and therefore not binding on future adjudications. 38 C.F.R. § 20.1303. The Board also acknowledges the articles submitted in support of the claim. However, as they are unaccompanied by a medical professional's opinion applying the information therein to the specifics of the instant case, they are too generic to establish linkage between the Veteran's death-causing CCA and his military service in Thailand, to include potential exposure to environmental hazards therein. See Timberlake v. Gober, 14 Vet. App. 122, 130 (2000). The 2020 provider's rationale that liver flukes are always present at the time of diagnosis of CCA if they were the cause addresses these articles. In summary, the most probative evidence is against a finding that the Veteran's death was due to a disability that was incurred or aggravated in service or that a service-connected disability contributed to cause his death. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to Dependency and Indemnity Compensation benefits under 38 U.S.C. § 1318 is denied. Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service-connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling for a period of not less than 5 years from the date of the Veteran's discharge from active duty, or was rated as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW and died after September 30, 1999. 38 U.S.C. § 1318. Entitlement to DIC under 38 U.S.C. § 1318 was denied in the February 2016 rating decision, August 2017 Statement of the Case (SOC), and May 2020 Supplemental Statement of the Case (SSOC). The appellant has not presented argument specific to this claim, The critical facts in this matter are not in dispute. The Veteran was not an ex-POW. At the time of his death, he had established service connection for residuals of a right knee disability evaluated at 10 percent disabling from November 1993; additionally, there were no pending service connection claims. Accordingly, he did not have a service-connected disability that was continuously rated totally disabling for 10 years prior to his death, or continuously rated totally disabled since his discharge from service (in October 1964). Thus, the legal criteria for DIC under 38 U.S.C.§ 1318 are not met (and cannot be met), and the appeal seeking DIC under 38 U.S.C. § 1318 must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lederman, Michael 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.