Citation Nr: 0615645 Decision Date: 05/30/06 Archive Date: 06/06/06 DOCKET NO. 03-18 831 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant is the widow of the veteran, who served on active duty from July 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2002 rating decision, by the Oakland, California, Regional Office (RO), which denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. The appellant perfected a timely appeal to that decision. In August 2005, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in January 2006. In May 2006, the appellant and her representative submitted additional evidence to the Board. Although that additional evidence has not been considered by the RO for an initial review and a supplemental statement of the case, the appellant waived consideration of that new evidence by the RO. See 38 C.F.R. §§ 19.37, 20.1304 (2005). FINDINGS OF FACT 1. The veteran died in September 2001, at the age of 50; the immediate cause of death was reported as metastatic melanoma, unknown, primary. No other significant condition contributing to death was reported on the death certificate. No autopsy was performed. 2. At the time of the veteran's death, service connection was in effect for acne vulgaris, rated as 10 percent disabling, and laceration scar, scalp, rated as 0 percent disabling. 3. The fatal disease process, melanoma, is attributable to service. CONCLUSION OF LAW The cause of the veteran's death was incurred as a result of his active military service. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.312 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2005), 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. They also require 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 that is necessary to substantiate the claim. As part of the notice, 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. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Court further held that VA failed to demonstrate that, "lack of such a pre- AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b) (2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3, 2006) (Hartman, No. 02-1506). The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the appellant in July 2003 was not given prior to the first AOJ adjudication of the claim, the notice as provided by the AOJ prior to the transfer and recertification of the veteran's case to the Board and notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). That letter informed the appellant of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her possession to the AOJ. In this case, all identified medical records relevant to the issue on appeal have been requested or obtained. VA obtained medical opinions in December 2001 and October 2005. The available medical evidence is sufficient for an adequate determination of the appellant's claim. Therefore, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled. II. Factual background. The veteran served on active duty from July 1968 to July 1971. The record reflects that the veteran died in September 2001, at the age of 50. A Certificate of Death, dated in September 2001, shows that the veteran's death was attributed to metastatic melanoma, unknown, primary. No other condition was listed as contributing to death but not resulting in the underlying cause of death. At the time of the veteran's death, service connection was in effect for acne vulgaris, rated as 10 percent disabling, and laceration scar, scalp, rated as 0 percent disabling. The service medical records were negative for any complaints, findings, or diagnosis of melanoma. Post-service medical records, VA as well as private treatment reports, dated from April 1973 through December 1977, reflect treatment for acne vulgaris. Of record are private treatment reports, from Dr. Michael Figueroa, dated from May 1994 through January 1995, which show that the veteran was diagnosed with metastatic melanoma in May 1994. Among these records is a progress note from Dr. Figueroa, dated in January 1995, reflecting a diagnosis of metastatic malignant melanoma of unknown primary. Dr. Figueroa indicated that he had been giving the veteran's case a large amount of thought and he was beginning to wonder if the melanoma was in fact a primary lesion. Dr. Figueroa noted that the veteran had a large amount of skin problems after returning from Vietnam, primarily associated with fungal infections; he stated that this may have contributed to the veteran's melanoma. On the occasion of a VA examination in May 2000, the veteran indicated that he had multiple sun exposure in Vietnam; he noted that this was an every day occurrence. He used no sunscreen. It was also noted that the veteran developed a fungal infection on his neck, back, and face. The veteran indicated that the fungal infection never fully cleared; he tried multiple medications without success. The veteran stated that he was told by a dermatologist in 1975 and 1976 that sun exposure would help with the infection; he had multiple sun exposure after that point and to some degree the fungal infection cleared. Following a physical examination, the veteran was given a diagnosis of malignant melanoma with rather severe complications. The examiner opined that this condition was at least as likely as not related to the sun exposure and fungal infections while in Vietnam. Received in October 2001 was a medical statement from Dr. Michael L. Figueroa, dated in October 2001, indicating that the veteran recently passed away from metastatic malignant melanoma; he stated that he had been following the veteran for well over 7 years regarding that diagnosis. Dr. Figueroa noted that the veteran served in Vietnam from 1970 to 1971; during that time, while out in the field, the veteran had a number of exposures to Agent Orange. Dr. Figueroa also noted that the veteran developed significant fungal infections involving the skin of his back, face, chest, and shoulders. It was reported that the veteran had no history of skin problems prior to Vietnam. Given this history, Dr. Figueroa stated that one is led to believe that the development of malignant melanoma to be directly related to his Vietnam experience. In a medical opinion from the Chief of Dermatology Service at the VA medical center, dated in December 2001, he stated that the strongest association between malignant melanoma and the veteran's service came from his sun exposure. The physician stated that it is well known that blistering sunburns were associated with an increased risk of melanoma, but it was unknown what the veteran's history of blistering sunburns were prior to his service in Vietnam. The physician explained that, previously, it had been thought that blistering sunburns in childhood was required or increased melanoma; however, it now appeared that adulthood sunburns also increased the risk. The physician indicated that he found no reports in the literature in association between fungal infection and development of melanoma. The physician concluded that it was plausible that the sunburn suffered by the veteran in Vietnam contributed to an increased risk of developing malignant melanoma; however, he stated that they had no way of proving whether the veteran's melanoma was proximately due to or the result of a service-connected disease or injury. In another medical statement, dated in July 2002, Dr. Figueroa noted that the veteran developed significant fungal infections about his face, chest and shoulders while in Vietnam. He also noted that the veteran was exposed to the tropical sun while in Vietnam, which cased further damage to his skin. Dr. Figueroa related that he consulted on the veteran in 1994 regarding a recent diagnosis of metastatic melanoma; and, in spite of great efforts, the veteran passed away in September 2001. Dr. Figueroa stated that he knew of no significant problems or unusual sun exposure prior to the veteran's service in Vietnam; he noted that, after Vietnam, the veteran's occupation kept him indoors while working in a warehouse for United Parcel Service and driving a truck. Received in May 2003 were extracts from the National Library of Medicine, dated in October 2002, which discusses malignant melanomas and malignant tumors of the skin. Of record is another medical statement from Dr. Figueroa, dated in July 2003, wherein he stated that it was his opinion that the factors resulting in malignant melanoma and subsequently the veteran's demise more likely than not occurred during his service in the United States Army, and most likely during his stent in Vietnam. Received in November 2004 were lay statements from the veteran's spouse and his cousin, both of whom indicated that the veteran was never a sun worshiper; he took precautions to prevent sunburn. Therefore, his spouse maintained that the melanoma developed as a result of the acne lesions. Of record is a medical statement from Dr. Craig N. Bash, dated in May 2005, indicating that he reviewed the veteran's claims folder for the purpose of providing a medical opinion regarding the veteran's melanoma. Dr. Bash noted that he had special knowledge in the area of neoplastic disease as he is board certified sub specialist and is a senior member of the American Society of Neuro-Radiology. Dr. Bash noted that the veteran was likely exposed to intense sun with associated sunburn while in Vietnam; and, the veteran died from metastatic melanoma and failed interleukin-2 and Alpha interferon treatments. Dr. Bash noted that the veteran had little if any significant exposure to the sun prior to or after service; and, he noted that sun exposure is a known risk factor in the induction of malignant melanomas. Consequently, it was Dr. Bash's opinion that the veteran's melanoma was likely caused by his sun exposure while in Vietnam. In October 2005, the veteran's claims folder was referred to a VA physician for a medical opinion. Following review of the claims folder, the VA physician indicated that relying on the available medical records opened up more questions and possibilities without any definite answers. The physician stated that he was unable to resolve the issue without resorting to mere speculation. He stated that his opinion was without prejudice to another practitioner who may render a different opinion. Received in May 2006 was another medical statement from Dr. Bash, dated in April 2006, who opined that it was more likely than not that the veteran received significant sun exposure while in Vietnam due to the fact that Vietnam is near the equator. Dr. Bash noted that the veteran was likely outside most of the time due to the nature of the military campaign, and his statements about sun exposure were all consistent with significant exposure, notwithstanding the lack of medical documentation. Dr. Bash explained that it is well known that medical care was sparse for non-emergent problems, and the medical records often did not follow the individual service member. Dr. Bash stated, after reviewing all the data, the negative family history, and the strong literature that documents high risk factors in young unprotected individuals, it was his opinion that it is as likely as not that the veteran's melanoma was caused in significant part due to his likely sun exposure in Vietnam. III. Legal Analysis. To prevail on the issue of entitlement to service connection for the cause of the veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110. The law also provides that service connection may be granted for any disease 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). Where a veteran who served for 90 days or more develops a chronic disease, including a malignant tumor, to a degree of 10 percent or more within the one year period from the date of separation from service, the disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. The Board notes that a VA medical opinion, obtained in October 2005, is insufficient in that it failed to address the question of whether sun exposure may have caused or contributed to the veteran's death. In fact, the physician stated that he was unable to resolve the issue without resorting to mere speculation. However, the Board notes that uncontested medical evidence provided by Dr. Figueroa in January 1995 and in October 2001, who had treated the veteran, stated that the veteran's development of malignant melanoma is directly related to his Vietnam experience. In July 2002, Dr. Figueroa noted that he knew of no significant skin problems or unusual sun exposure prior to the veteran's service in Vietnam. More recently, in July 2003, Dr. Figueroa stated that it was his opinion that the factors resulting in malignant melanoma and subsequently the veteran's demise more likely than not occurred during his service in the United States Army, and most likely during his stent in Vietnam. Additional positive medical opinion was provided by Dr. Bash in May 2005, wherein he stated that the veteran's melanoma was likely caused by his sun exposure while in Vietnam; he reiterated his opinion in a statement dated in April 2006. The overwhelming evidence of record supports the notion that sun exposure in service in Vietnam resulted in melanoma and contributed to the veteran's death. The Board accepts as credible the lay evidence suggesting that the veteran experienced sun exposure in service while serving in Vietnam. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. Here, there is competent evidence of record supporting the appellant's claim that the cause of the veteran's death melanoma was the result of his sun exposure during service in Vietnam. There is no competent medical evidence that conflicts with this finding. Thus, in view of this evidence, the Board concludes that the veteran's melanoma was related to service. Accordingly, service connection is granted for cause of the veteran's death. ORDER Service connection for cause of the veteran's death is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs