Citation Nr: 0303347 Decision Date: 02/26/03 Archive Date: 03/05/03 DOCKET NO. 00-23 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for malignant melanoma claimed due to exposure to herbicide. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active service from April 1962 to April 1964. This appeal arises from a January 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, that denied entitlement to service connection for malignant melanoma as a result of exposure to herbicide. The veteran has appealed to the Board of Veterans' Appeals (Board) for favorable resolution. The veteran had requested a hearing; however, in April 2001, he withdrew that request. In May 2001, the Board remanded the case to the RO for additional development consistent with the Veterans Claims Assistance Act of 2000 (VCAA). In that remand and in accordance with Manlincon v. West, 12 Vet. App. 238 (1999), the Board remanded a claim for benefits for the veteran's leukemic child, instructing the RO to issue a statement of the case (SOC) on the matter. The Board notes that the RO issued an SOC on December 10, 2002; however, because no substantive appeal has yet been filed, the Board lacks jurisdiction to address that claim at this time. FINDINGS OF FACT 1. The veteran was exposed to Agent Orange while serving in Vietnam. 2. The positive and negative medical opinions on the matter of service connection for malignant melanoma appear to be in approximate balance. CONCLUSION OF LAW It is at least as likely as not that malignant melanoma was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1137, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served in Vietnam for 11 months and 10 days, according to his discharge certificate. His service medical records (SMRs) do not reflect treatment for any pertinent condition. In March 1999, the veteran filed a claim for service connection for melanoma of the back. He submitted a letter from his private physician, Stuart Kittay, M.D., who had this to say: [The veteran] has been my patient for most of the past year. In July of 1998 I diagnosed and removed a melanoma from his back. A copy of the biopsy is enclosed. [The veteran] has a history of Agent Orange exposure while a soldier in Vietnam. There have been many associations of various health effects related to this exposure. Malignant Melanoma is one of these deleterious health effects that has been associated. Along with his claim, the veteran also submitted a copy of a VA report that states that there is some scientific evidence tending to link exposure to Agent Orange to various health problems, including inter alia skin cancer and malignant melanoma. The report notes that the United States Military sprayed Agent Orange in Vietnam from 1962 to 1971. The veteran underwent a VA general medical examination in April 1999 wherein the examiner noted a history of malignant melanoma with resection in September 1998. No etiology of the skin cancer was offered. In January 2000, the RO denied the service connection claim on the basis of no competent evidence of a link between active service and skin cancer. In November 2000, the veteran submitted a short treatise from the American Academy of Dermatology, Inc. (AADI), which suggests that in addition to such risk factors as sun exposure, family history, or gender and hormonal factors, exposure to pesticides was also a possible risk factor for skin cancer. The veteran also submitted copies of materials previously submitted in November 2000. In March 2001, the veteran reported that there was no cancer in his family history. He submitted a letter from his cancer surgeon, Dr. Borruso, who reportedly had just learned that the veteran had been exposed to Agent Orange and wanted to offer some support for the letters already sent by Drs. Kittay and McDermott. In May 2001, the Board remanded the case for additional development. A Veterans Claims Assistance Act of 2000 (VCAA) letter, a search for a letter from Dr. McDermott, and a VA medical opinion were requested. In a June 2001 letter, John McDermott, M.D., had this to say: While a soldier on duty in Vietnam, [the veteran] was exposed to Agent Orange. It is my understanding that there is a causal relationship between exposure to Agent Orange and malignant melanoma and that it is equally likely as not that his exposure to Agent Orange brought about his malignant melanoma. In March 2002, the RO notified the veteran of the provisions of the VCAA and of what evidence the veteran must provide and what evidence VA would provide. In March 2002, the RO sought a VA medical opinion with a complete rationale for any opinion rendered. Subsequently, a VA examiner reviewed the claims file and relevant medical history of the case. The examiner had this to say: The issue is whether this is related to Agent Orange Exposure. Review of the 2000 Veterans and Agent Orange manual reveals that malignant melanoma is NOT one of the presumptive health effects of dioxin exposure. It is therefore less likely than not that his malignant melanoma and subsequent complications are due to service- connected dioxin exposure. The veteran submitted additional news clippings concerning his and other veterans' efforts to win VA regulatory recognition for skin cancer victims. He submitted portions of an abstract entitled "The History of Agent Orange Use In Vietnam An Historical Overview From The Veteran's Perspective". The abstract notes that Agent Orange spray aircraft flew from Tan Son Nhut Air Base beginning in January 1962. Another article entitled "Agent Orange In Vietnam-An Overview" reflects that the herbicides used in Vietnam are known to be carcinogenic. II. VCAA During the pendency of this appeal, the VCAA was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. The VCAA and the implementing regulations are liberalizing and are therefore applicable to the issue on appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The VCAA and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary (i.e., to VA) that is necessary to substantiate the claim. VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Karnas, supra, the United States Court of Appeals for Veterans Claims (hereinafter referred to as the Court) held that where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise. The Court has also held that where a Board decision addresses a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board finds that the veteran is not prejudiced by its consideration of the claim pursuant to this new legislation and implementing regulations insofar as VA has already met all notice and duty to assist obligations under the new law and newly promulgated implementing regulations. In essence, the veteran has been notified as to the laws and regulations governing service connection for skin cancer and service connection under Agent Orange regulations. He has, by information letters, rating actions, an SOC and SSOC, been advised of the evidence considered in connection with his claim, and what evidence that is potentially probative or not probative of the claim. 38 C.F.R. § 3.159(b)(1), (e). The RO has attempted to obtain, and has associated with the claims file, all pertinent service records, VA medical records, and the private medical records identified by the claimant. The Board emphasizes that by letter dated in March 2002, the RO notified the veteran of the provisions of the VCAA and its potential impact on his claim, allowing him an additional period of time in which to present evidence and/or argument in support of the appeal. The veteran responded to the letter. For the reasons set out above, the veteran will not be prejudiced as a result of the Board deciding the claim at this time. III. Legal Analysis In general, service connection may be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "Direct service connection" may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. Each disabling condition shown by SMRs, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown be service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct service connection" may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There is no requirement that a disorder must be chronic as a condition precedent to direct service connection under 38 C.F.R. § 3.303; however, "chronic diseases" as defined at 38 U.S.C.A. § 1112 and at 38 C.F.R. §§ 3.307 and 3.309 are accorded special consideration for service connection if manifested to a degree of 10 percent within a year of discharge. In this case, the veteran claims service connection for malignant melanoma, which is a malignant tumor and therefore is a "chronic disease" as defined at 38 C.F.R. § 3.309; however, this disease was not manifested until July 1998, which is over 34 years after the veteran's discharge from active service. Thus, the provisions for presumptive service connection for chronic disease found at 38 C.F.R. § 3.309(a) cannot apply. VA statute and regulations contain special provisions for service connection for those veterans who were exposed to herbicides during active service. 38 U.S.C.A. § 1116 (West 1991 and Supp. 2002); 38 C.F.R. § 3.309(e) (2002). The specified diseases associated with herbicides are: chloracne and other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes), Hodgkin's disease, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and certain soft tissue sarcomas. 38 C.F.R. § 3.309(e) (2002). Malignant melanoma is not found among the statutorily enumerated diseases for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Thus, the only remaining avenue for service connection in this case is the "direct service connection" approach set forth by the Federal Circuit Court of Appeals (Fed. Cir.) in Combee, supra. The Board notes that for purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4- dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West Supp. 2002). In this case, the veteran served in Vietnam during the delimiting dates and there is no affirmative evidence to establish that the veteran was not exposed to an herbicide agent. The Board finds therefore that the veteran was exposed to herbicide agents during active service. The veteran has submitted competent medical evidence of a causal connection between herbicide exposure during active service and the subsequent onset of malignant melanoma, albeit more than 34 years after the last possible exposure to herbicide during active service. On the other hand, a VA health professional has opined that it is less than "at least as likely as not" that malignant melanoma was caused by exposure to herbicide during active service. The Board must weigh the affirmative evidence against the negative evidence to determine whether the evidence preponderates against the claim. Dr. Kittay informed us that Agent Orange "has been associated" with malignant melanoma. This appears to agree with the VA report in the claims file that notes that there is scientific evidence tending to link the two and it also agrees with the AADI report that reflects a link between the two. The Board notes at this point, however, that establishing a statistically significant correlation, as the studies appear to have done, does not compel the conclusion that it is "at least as likely as not" that a particular case of malignant melanoma was caused by exposure to herbicide. Dr. McDermott offered an "equally likely as not" opinion that the veteran's malignant melanoma is related to his exposure to Agent Orange. Dr. McDermott's opinion comports with the previously mentioned scientific evidence correlating Agent Orange with increased rates of skin cancer; however, the Board notes that Dr. McDermott has leapt far beyond the established evidence in finding that Agent Orange is "equally likely as not" to be the causative factor in this case. Dr. McDermott did not offer any rationale to explain the conclusion reached, such as citing any evidence that the incident rate of malignant melanoma in Agent Orange exposed veterans is significantly higher than the incident rate of malignant melanoma in the general population. Thus, the Board will remain skeptical of this medical opinion. Finally, Dr. Borruso offers support for Dr. McDermott. The Board deems therefore that Dr. Borruso feels that the veteran's malignant melanoma might be related to Agent Orange exposure. On the other hand, the only medical opinion that argues against service connection is that of a VA health professional who reasoned that because malignant melanoma was not on VA's list of presumptive effects of Agent Orange, it was therefore unlikely be a causative factor. The health professional offered no other rationale. The Board notes that this rationale is tautological in that had malignant melanoma appeared on VA's list of diseases for which service connection may be presumed, the Board would not have needed to ask an expert. The Board specifically asked for a complete rationale. 38 U.S.C.A. § 5107 (West Supp. 2002) states, "The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant." When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2002). The positive medical opinion appears to be speculative; however, the sole negative VA medical opinion is not very compelling and does not preponderate against the claim. Because the positive and negative evidence appears to be in approximate balance, a reasonable doubt has arisen regarding service origin that must be resolved in favor of the claimant. The Board will therefore grant service connection for malignant melanoma. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). ORDER Service connection for malignant melanoma is granted. ____________________________________________ J. E. Day Veterans Law Judge Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.