Citation Nr: A21020212 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210914-185377 DATE: December 17, 2021 ORDER Service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran's death certificate shows he died in September 2019; the immediate cause of his death was metastatic cholangiocarcinoma. 2. The primary cause of the Veteran's death, cholangiocarcinoma, is reasonably shown to have been related to his exposure to herbicide agents in service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1960 to January 1964. The Veteran died on September [REDACTED], 2019. See Death Certificate. The Appellant is his surviving spouse. The Appellant filed a claim for Dependency and Indemnity Compensation (DIC) benefits in September 2020. The March 2021 rating decision denied service connection for cause of death. Following that decision, the Appellant submitted a supplemental claim in May 2021 arguing the Veteran's cholangiocarcinoma was caused by herbicide agent exposure in the Republic of Vietnam. A July 2021 rating decision denied the Appellant's claim. The Appellant disagreed with that decision and in September 2021 she submitted a Decision Review Request: Board Appeal (Notice of Disagreement). The Appellant elected the Evidence Submission docket. See VA Form 10182. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Entitlement to service connection for cause of death 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). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or 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 established for a disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any 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 establish service connection for a claimed disability, there must be: (1) medical evidence of such disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed disability and the disease or injury in service. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Appellant seeks service connection for the cause of the Veteran's death. At the time of his death, he was not service-connected for any disability. However, it is not the Appellant's contention that the Veteran died from any service-connected disability. Rather, she has advanced other theories of entitlement, the main one being that his immediate cause of death, cholangiocarcinoma, was related to his exposure to herbicide agents (Agent Orange) in service. The Veteran had verified in-country service in the Republic of Vietnam (RVN). His service personnel records reflect that he arrived in Soc Trang, South Vietnam in April 1962 and departed from the same in July 1962. VA regulations state that Veterans who served in the RVN from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to certain herbicide agents such as Agent Orange. 38 C.F.R. § 3.307 (a)(6)(iii). Accordingly, the Veteran's in-service exposure to herbicide agents is presumed. VA regulations also provide that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption does not include cholangiocarcinoma. Consequently, the herbicide agents exposure presumptive provisions of 38 U.S.C. § 1116 do not apply to the appellant's claim for service connection for the cause of the Veteran's death. Nevertheless, a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange, is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the issue before the Board is whether there exists a medical nexus between cholangiocarcinoma and the Veteran's exposure to herbicide agents in service. In July 2021, a VA examiner reviewed the Veteran's entire claims file, including postservice treatment records, and opined that it was less likely than not the Veteran's cholangiocarcinoma was due to exposure to Agent Orange. In support of that opinion, the examiner indicated the reference submitted by the Appellant was a review article that stated a "possible" association with herbicide agent exposure and cholangiocarcinoma from 2012, and the gold standard was the NAS 2018 review. The examiner further stated that epidemiologic findings for hepatobiliary cancers had not suggested an association with exposure to the COIs and included a quote from the NAS 2018 review, which states, "On the basis of the evidence reviewed here and in previous VAO reports, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and hepatobiliary cancers." The examiner concluded it was less likely as not herbicide agent exposure substantially, materially contributed to death or that it combined to cause death, or that it aided or lent assistance to the production of death. See July 2021 VA Medical Opinion. Subsequently, the Appellant submitted additional medical articles in support of the claim. See September 2021 Correspondence. She also submitted a private medical opinion from Dr. C.M., the Veteran's family physician, dated July 2021 (received by VA in September 2021) which explained how cholangiocarcinoma was a rare form of cancer of the bile duct. Dr. C.M. noted that risk factors for this cancer included chronic ulcerative colitis, liver cirrhosis, chronic hepatitis, and diabetes, but noted the Veteran did not have any of these known risk factors. Dr. C.M. also noted that other known risk factors were parasite infections from liver flukes and a possible correlation with dioxin (Agent Orange) an already known carcinogen. Dr. C.M. opined the Veteran was "highly likely to have encountered these risk factors during his military service in Southeast Asia during the Vietnam War. In fact, the rate of cholangiocarcinoma is 10 times higher in Southeast Asia than anywhere else in the world." Therefore, it was Dr. C.M.'s medical opinion that the Veteran's unfortunate cancer was more likely than not a result of his time served in Southeast Asia. See September 2021 Private Medical Opinion. After a review of the record and careful consideration of the opinions of record, the Board finds the evidence is at least in equipoise as to whether the Veteran's cholangiocarcinoma is related to his military service. Both the VA examiner and C.M. are medical professionals competent to render an opinion in this matter. Each opinion is supported by adequate rationales, with citations to medical literature and consideration of the record, although they reach opposing conclusions. (Continued on the next page) Resolving all reasonable doubt in the Appellant's favor (as is required under these circumstances), the Board finds that the competent evidence of record supports the appellant's claim. Consequently, service connection for the cause of the Veteran's death is warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.