Citation Nr: 0921829	
Decision Date: 06/10/09    Archive Date: 06/17/09

DOCKET NO.  07-03 883	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
York, New York


THE ISSUE

Entitlement to service connection for the cause of the 
Veteran's death.


REPRESENTATION

Appellant represented by:	New York State Division of 
Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and appellant's son


ATTORNEY FOR THE BOARD

Jon Schulman, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1967 until 
February 1969.

This matter comes before the Board of Veterans' Appeals 
(BVA or Board) from a August 2006 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO) 
in New York, New York.


FINDING OF FACT

A fatal disease process, melanoma, is attributable to 
service.


CONCLUSION OF LAW

A disability incurred in service caused death.  38 
U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2008)


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is claiming entitlement to service 
connection for the cause of the Veteran's death.  
Specifically, she claims that the Veteran's terminal 
disease, metastatic melanoma, relates to the Veteran's 
exposure to herbicides while in service.

As provided for by the Veterans Claims Assistance Act of 
2000 (VCAA), VA has a duty to notify and assist claimants 
in substantiating a claim for VA benefits.  38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) 
(2008).  In this case, the Board is granting, in full, the 
benefit sought on appeal.  Accordingly, assuming, without 
deciding, that any error was committed with respect to 
either the duty to notify or the duty to assist, such 
error was harmless and need not be further considered.  

Service connection for the cause of death may be granted 
when a disability incurred in or aggravated by service 
caused, contributed substantially or materially to the 
cause of death.  INSERT CITES INSERT BOILERPLATE




The Board of Veterans' Appeals is under an obligation to 
base the decision on the evidence of record.  The evidence 
in this case establishes that the Veteran served in the 
Republic of Vietnam.  Exposure to herbicides is presumed.  
He died years after service and it is clear that melanoma 
was a contributing factor.  Although melanoma is not an 
Agent Orange presumptive disease, that fact is not 
controlling.  Rather, the issue is whether melanoma is 
attributable to service, including herbicides, in this 
case.  (INSERT COMBEE.)    Here, Dr. Ronald Bash provided 
clinical notes and an opinion regarding the treatment of 
the Veteran.  He also noted, correctly, that the Veteran 
had been exposed to dioxin, a well known, potent 
carcinogen and that it was not unreasonable to conclude 
that there was a relationship.  This constitutes positive 
evidence.  In another document, the appellant submitted an 
extract of a study which found an increased risk of 
melanoma among those sprayed with Agent Orange.  This also 
constitutes positive evidence.

The AOJ had an opportunity to develop the case, but did 
not.  The Board admits that the development of the 
evidence on each side could have been better.  However, in 
order to deny the claim, the law requires that the 
preponderance of the evidence be against the claim.  
Since, when providing a Combee type analysis there is no 
negative evidence, it is impossible to conclude that the 
preponderance of the evidence is against the claim. At 
this time, and without further development, the evidence 
supports the claim. 







The Veterans Claims Assistance Act of 2000 (VCAA) provides 
that VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) 
(2008).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).

Additionally, the VCAA provides that VA shall make 
reasonable efforts to assist a claimant in obtaining 
evidence necessary to substantiate the claimant's claim, 
unless no reasonable possibility exists that such 
assistance would aid in substantiating the claim. The VCAA 
also requires that an examination be provided where VA 
determines it is necessary to decide the claim. 38 
U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 
C.F.R. § 3.159 (2005). In this vein, the Court held in 
McLendon v. Nicholson, 20 Vet. App. 79 (2006), that in 
disability compensation (service connection) claims, the 
VA must provide a VA medical examination when there is (1) 
competent evidence of a current disability or persistent 
or recurrent symptoms of a disability, and (2) evidence 
establishing that an event, injury, or disease occurred in 
service or establishing certain diseases manifesting 
during an applicable presumptive period for which the 
claimant qualifies, and (3) an indication that the 
disability or persistent or recurrent symptoms of a 
disability may be associated with the Veteran's service or 
with another service-connected disability, but (4) 
insufficient competent medical evidence on file for the VA 
to make a decision on the claim.

According to the law, service connection is warranted if 
it is shown that a Veteran has a disability resulting from 
an injury incurred or a disease contracted in the line of 
duty, or for aggravation of a preexisting injury or 
disease in active military service.  38 U.S.C.A. § 1110 
(West 2002); 38 C.F.R. § 3.303 (2005).  Service connection 
may also be granted for any disease diagnosed after 
discharge when all of the evidence establishes that the 
disease was incurred in service.  See 38 C.F.R. § 
3.303(d).  

The Veteran's death certificate lists the immediate cause 
of death as pulmonary embolism and indicates that 
metastatic melanoma was a significant condition 
contributing to the Veteran's death.  

The Veteran was first diagnosed with a melanoma in July 
1977, eight years after separation.  The record 
demonstrates that the Veteran continued to receive 
treatment and removal of melanoma and related disorders 
until his death.  In March 1978 and December 1979 the 
Veteran had pigmented nevi removed.  Additional nevi and 
dermatofibroma of the skin were identified in December 
1980 and July 1981 and June 1999.  A statement submitted 
by Dr. R.B. in April 2005 indicates that the Veteran 
remained under Dr. R.B.'s care from May 1999 through 
January 2000 for cancer-related treatments.  The Veteran 
died in January 2000

In a April 2005 Dr. R.B. stated that the Veteran was 
exposed to dioxin while serving in Vietnam and that dioxin 
is a well-known carcinogen.  Dr. R.B. asserted that "it is 
not unreasonable to concludes there was a relationship" 
between dioxin exposure and melanoma.  

Although the Veteran is not entitled to presumptive 
service connection for melanoma due to herbicide exposure 
under 38 C.F.R. § 3.309(e), that does not preclude the 
possibility of service connection being established on a 
direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. 
Cir. 1994) (holding that the Veterans' Dioxin and 
Radiation Exposure Compensation Standards (Radiation 
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 
2727-29 (1984), does not preclude a Veteran from 
establishing service connection with proof of actual 
direct causation).

In October 2005 a VA medical opinion stated, essentially, 
that the cause of death was not service connected and that 
the Veteran's service connected disabilities, scars and 
bilateral hearing loss, did not contribute to his death.  
The opinion failed to address, however, whether melanoma 
might be related to service.  As stated, VA is under an 
obligation to provide an adequate examination where there 
is an indication that a disability may be associated with 
the Veteran's service. McLendon, supra.  Here, Dr. R.B.'s 
statement regarding possible connection between in-service 
exposure and melanoma meets the low threshold of McLendon 
and an examination must be provided to determine whether 
metastatic melanoma was related to service.



ORDER

Service connection for the cause of death is granted.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs