Citation Nr: 23014010 Decision Date: 03/08/23 Archive Date: 03/08/23 DOCKET NO. 18-27 732 DATE: March 8, 2023 ORDER Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of death is remanded. FINDING OF FACT The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously after his release from active duty and for at least five years immediately preceding his death, nor was he a former prisoner of war (POW). CONCLUSION OF LAW The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1966 to October 1968. Tragically, the Veteran passed away in October 2016. His certificate of death lists infection, pleural effusion, and gallbladder duct cancer as the immediate cause of death. The Appellant is the Veteran's spouse. In July 2022, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. In November 2016, the Appellant applied for service connection for the Veteran's cause of death and DIC benefits under 38 U.S.C. § 1318. In January 2017, the agency of original jurisdiction (AOJ) issued a rating decision denying her claims. These matters are before the Board of Veterans' Appeals (Board) on appeal from the January 2017 VA (AOJ) rating decision. DIC benefits under § 1318 are awarded to the surviving spouse of a deceased veteran if the evidence shows that the veteran's disabilities were continuously rated as totally disabling for a period of 10 or more years immediately preceding his/her death, or that the Veteran's disabilities were continuously rated as totally disabling for a period of not less than five years from the date of the veteran's discharge and up to his/her death, or that the Veteran was a former POW, and his/her disabilities were continuously rated as totally disabling for a period of not less than one year immediately preceding his/her death. Here, the Veteran is not rated totally disabled and he was not a POW. Therefore, the Appellant is not entitled to DIC benefits under 38 U.S.C. § 1318. REASONS FOR REMAND A veteran's death is considered as being due to a service-connected disability when the evidence establishes that his/her service-connected disability was either the principal or a contributory cause of death, based on an exercise of sound judgment, without recourse to speculation and after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including autopsy reports. See 38 C.F.R. § 3.312 (a), (b), (c). A service-connected disability is deemed the principal, i.e., primary cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. See 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one that is not related to the principal cause. See 38 C.F.R. § 3.312 (c). In order for a service-connected disability to be deemed a contributory cause of a veteran's death, it must be shown that it contributed substantially or materially, combined to cause death, and aided or lent assistance to the production of death. It is not sufficient to show that it just "shared" in producing death: it must be shown that there was a causal connection. See 38 C.F.R. § 3.312 (c)(1); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). On the VA Form 9, Appeal to Board of Veterans' Appeals, filed in May 2018, the Appellant's representative indicated that the Veteran's cholangiocarcinoma (bile duct cancer) was caused by the Veteran's exposure to liver flukes while in Vietnam, or in the alternative, was caused by his laryngeal cancer. A medical opinion was provided by the AOJ in March 2018. The VA examiner stated that it is less likely than not that the Veteran's cholangiocarcinoma due to or the result of the Veteran's service-connected laryngeal carcinoma. The examiner provided a rationale that the Veteran was treated for laryngeal carcinoma in 2006 with radiation and chemotherapy without recurrence and the cholangiocarcinoma was developed more recently and, after lung metastasis, resulted in the Veteran's death in October 2016. Another medical opinion was provided by the AOJ in April 2019. The VA examiner stated that it is less likely than not that the Veteran's conceded military exposure to liver flukes (from 1966 to 1968) would have contributed to the Veteran's death from cholangiocarcinoma. The examiner provided a rationale that the liver flukes live for 20-30 years in the ducts that carry bile from the liver to the intestines, and the parasites die off naturally without treatment and would have died off years ago and would not have contributed to his cholangiocarcinoma. However, the March 2018 medical opinion is insufficient because medical opinions addressing secondary service connection must discuss both causation and aggravation. El-Amin v. Shinseki, 26 Vet. App. 136 (2012). In addition, the Veteran's personnel records show that the Veteran served in the Republic of Vietnam during the Vietnam era. However, as cholangiocarcinoma is not included among the diseases presumed to be associated with herbicide agent exposure, the provisions pertaining to presumptive service connection based on herbicide agent exposure do not apply. 38 C.F.R. §§ 3.307, 3.309; see also the Honoring our PACT Act of 2022. Nonetheless, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As such, a medical opinion is also necessary to determine if the Veteran's cholangiocarcinoma is due to his herbicide agent exposure. The matters are REMANDED for the following action: 1. Forward the Veteran's claim file for an examination by an appropriate VA clinician. The clinician is requested to carefully review the claim file, to include this Remand order, and opine whether the Veteran's cholangiocarcinoma was aggravated beyond its natural progression by his laryngeal carcinoma. NOTE: With respect to questions concerning aggravation, the examiner is advised that 38 C.F.R. § 3.310 (b) does not require that there be "permanent worsening" of the nonservice-connected disability. 2. Is it approximately at least as likely as not that the Veteran's cholangiocarcinoma was caused by exposure to the Veteran's conceded herbicide exposure in Vietnam? 3. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the Appellant's claim cannot be provided without resorting to speculation, the VA clinician is requested to provide an explanation as to why this is so and to clarify what additional development would permit the requested opinion to be rendered. 4. After completing the foregoing and any other development necessary, adjudicate the Appellant's claim for service connection for the Veteran's cause of death. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Merriam, Jeffrey 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.