Citation Nr: 0024689 Decision Date: 09/15/00 Archive Date: 09/21/00 DOCKET NO. 98-13 665A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran, who served on active duty from November 1945 to November 1947, died in October 1980. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for the cause of the veteran's death. On May 20, 1999, the Board issued a decision finding that the appellant's claim for service connection for the cause of the veteran's death was not well-grounded. The appellant appealed the Board's 1997 decision to the United States Court of Appeals for Veterans Claims (hereinafter, the Court). By order dated April 20, 2000, the Court vacated the Board's decision and remanded the matter for the Board to further develop the record and reexamine the evidence. Additional argument and evidence, which included a statement waiving RO jurisdiction, were received from the appellant's representative in August 2000. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. The cause of the veteran's death in October 1980 was reported to be malignant melanoma with metastases. 3. It is as likely as not that the malignant melanoma with metastases was related to the veteran's exposure to the sun during active service. CONCLUSION OF LAW Malignant melanoma with metastases, which was incurred as the result of service, caused the veteran's death; service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking service connection for the cause of the veteran's death. The Board notes that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, she has presented a claim which is plausible. The Board concludes no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The appellant does not contend, nor does the evidence suggest, that malignant melanoma, the condition shown on the certificate of death as being the underlying cause of death, was present in service. Rather, the appellant contends that the veteran was exposed to the sun during his military service in Guam and, as a result, he developed fatal malignant melanoma which metastasized and ultimately caused his demise. Factual Background On October 27, 1980, the veteran died at Ravenswood Hospital Medical Center. The certificate of death listed the cause of death as malignant melanoma with metastases. No contributory causes of death were reported and it was indicated that an autopsy was not performed. At the time of the veteran's death service connection was not in effect for any disability. The veteran's Notice of Separation from the U.S. Naval Service reflects that he had served overseas in Guam. His service medical records are negative for any complaints, findings, treatment or diagnosis with respect to the skin or due to exposure to the sun. Medical records from Little Company of Mary Hospital, dated in 1979 to 1980, reflect that in August 1979 the veteran was treated for metastatic squamous cell carcinoma of the right neck area which had metastasized into the cervical lymph nodes. The veteran had a malignant melanoma, superficial spreading type, removed from his back in November 1979. The melanoma was reported to be located at the level of the right upper portion of the back close to the shoulder. In April 1997 an article entitled "Sunlight and Skin Cancer" from the Scientific American, dated in July 1996, which discussed the relationship between exposure to the sun and the subsequent development of skin cancer, was received from the appellant. Also received were copies of photographs of the veteran taken during his service in Guam and a February 1997 statement from the appellant's dermatologist, Keith M. Kozeny, M.D. Dr. Kozeny stated that it was his opinion that a malignant melanoma could occur thirty-five years or more after a severe sunburn. A video conference hearing, before the undesigned Board Member, was conducted in March 1999. At this time the appellant gave detailed testimony in support of the claim. She testified that the veteran was fair-skinned, had lived in Chicago, Illinois, and had never been exposed to the sun until he served in Guam. She related that after service he was a printer who worked indoors and did not engage in outdoor activities, such as golf or fishing. She contends that he did not have any hereditary factors which would have predisposed him to the fatal melanoma and that his fatal malignant melanoma was a result of in-service exposure to the sun in Guam. She presented duplicate photographs of the veteran during his service in Guam as well as additional excerpts from various medical journals, each of which discussed the risks of sun exposure, including skin cancer. Craig N. Bash, M.D., in a May 2000 statement, indicated that he had reviewed the veteran's claims file, including the appellant's testimony and letters, the veteran's service medical records, photographs of the veteran, post service medical records and statements, the veteran's death certificate and the medical literature. Dr. Bash was of the opinion that the veteran's fatal malignant melanoma was likely directly caused by his inservice sun exposure as the tumors occurred in the anatomic location where he would have likely received frequent sunburns due to the lack of a shirt, the tumors were of the type associated with sun radiation exposure, the tumors occurred at a latency period consistent with sun exposure in the period 1946-47 and he did not have any other documented post-service exposure to solar radiation. Analysis 38 U.S.C.A. § 1310 provides, in pertinent part, that when any veteran dies from a service-connected or compensable disability, the VA shall pay dependency and indemnity compensation to such veteran's surviving spouse. The death of a veteran is due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312. The appellant specifically asserts that, as the result of the veteran's exposure to the sun while in Guam, he developed a malignant melanoma and that this disability caused his death. While the opinion from Dr. Kozeny did not affirmatively establish the veteran's malignant melanoma was the result of his exposure to the sun during service, Dr. Kozeny did indicate that a malignant melanoma could occur thirty-five years or more after a severe sunburn. Dr. Bash, in his recent statement, concluded that, based upon the location of the veteran's melanoma, the type of tumor and the latency period, the malignant melanoma was likely directly caused by his inservice sun exposure as the veteran did not have any other documented post-service exposure to solar radiation. Resolving all doubt in favor of the appellant, the Board finds that the veteran's malignant melanoma was the result of service and that service connection should be granted for the cause of the veteran's death. U.S.C.A. §§ 1310, 5107; 38 C.F.R. § 3.312. ORDER Entitlement to service connection for the cause of veteran's death is granted. The appeal is allowed, subject to the law and regulations governing the payment of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals