Citation Nr: 1307103 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 04-00 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active service from October 1966 to July 1969 and from February 1971 to May 1988. The Veteran served in the Republic of Vietnam. He died in April 2001. The appellant is the Veteran's surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Buffalo, New York, Regional Office (RO) which, in pertinent part, denied service connection for the cause of the Veteran's death. In June 2007 and in September 2009, the Board remanded the issue of service connection for the cause of the Veteran's death to the RO for additional action. In August, 2010, the Board denied service connection for the cause of the Veteran's death. The appellant subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court granted the parties' Joint Motion for Remand; vacated the August 2010 Board decision; and remanded the issue of service connection for the cause of the Veteran's death to the Board for additional action. In September 2011, the Board remanded the matter on appeal for compliance with the Joint Motion and Court remand directives. Since the matter has returned to the Board, in November 2012, the appellant and her representative have submitted additional evidence in support of her claim. This additional evidence was accompanied by a waiver of review by the Agency of Original Jurisdiction. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and thus, it is presumed he was exposed to Agent Orange while there. 2. The Veteran died in April 2001, and his death certificate lists the immediate cause of his death as multiple organ failure due to malignant melanoma. 3. The conflicting competent and credible evidence is in approximate balance on whether the cause of the Veteran's death, malignant melanoma, is attributable to his military service. CONCLUSION OF LAW By extending the benefit of the doubt to the appellant, the criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). With respect to the claim for service connection for cause of the Veteran's death, to the extent that the action taken below is favorable to the appellant, further discussion of VCAA is not required at this time. 2. Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of death of the Veteran, the evidence must establish that a disability of service origin caused, hastened, or substantially and materially contributed to the Veteran's death. 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. The death of a veteran will be considered to have been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The principal cause of death is one which singularly or jointly with some other condition was the immediate cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Accordingly, 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. A service-connected disability is one that was contracted in the line of duty and was incurred in or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Also, certain chronic diseases may be presumed to have been incurred in service if they are manifested to a compensable degree within one year of service separation. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection in the context of this claim, once the death of the Veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In some circumstances, a disease associated with exposure to certain herbicide agents (e.g., Agent Orange) will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. The itemized conditions found to have some relation to Agent Orange exposure are listed at 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to 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); 38 C.F.R. § 3.307(a)(6)(iii). The benefit of the doubt rule provides that the claimant will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the claimant prevails in his or her claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the appellant seeks entitlement to service connection for the cause of the Veteran's death. The Veteran's certificate of death shows the immediate cause of death was listed as multiple organ failure due to malignant melanoma. The appellant attributes the Veteran's death from malignant melanoma to a combination of exposure to direct sunlight and herbicides during his service in Vietnam during the Vietnam War. The Veteran died in April 2001. The death certificate lists the immediate cause of his death as multiple organ failure due to malignant melanoma. Notably, this disorder was not service connected at the time of his death. At the time of his death, he also had several service-connected disabilities, including: lumbosacral pain secondary to degenerative joint disease (DJD, i.e., arthritis), rated as 40-percent disabling; left knee pain with DJD, rated as 10-percent disabling; right knee pain with DJD, rated as 10-percent disabling; right ankle pain, rated as 10-percent disabling; left ankle pain, rated as 10-percent disabling; tinnitus, rated as 10-percent disabling; healed fracture of the left fifth metacarpal, rated noncompensable (0 percent); bilateral hearing loss, rated noncompensable (0 percent); feet trichophytosis, rated noncompensable (0 percent); acne of the chest, back, and abdomen, rated noncompensable (0 percent); and a pilonidal cyst, rated noncompensable (0 percent). He had a combined rating of 70 percent for his service-connected disabilities, effective from September 11, 1997. He was also in receipt of a total disability rating effective since September 8, 2000. There is no contention, let alone evidence, that any of the Veteran's service-connected disabilities noted above either caused or contributed substantially and materially to his death. Therefore, the Board turns to the question of whether the Veteran's malignant melanoma was related to his period of active service, including due to herbicide exposure and/or excessive sunlight exposure. The Veteran's military records verify that he served in the Republic of Vietnam during the Vietnam era, so it is presumed that he was exposed to Agent Orange while there. Nevertheless, malignant melanoma is not among the diseases listed in 38 C.F.R. § 3.309(e) that is presumptively associated with exposure to Agent Orange. Additionally, under the authority of the Agent Orange Act of 1991 and supplemental legislation, the Secretary of VA has reviewed reports from the National Academy of Science and determined there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 72 Fed. Reg. 32395, 32407 (June 12, 2007). Consequently, malignant melanoma may not be service-connected on a presumptive basis. The availability of presumptive service connection for a disability based on exposure to herbicides or as a qualifying chronic disability, however, does not preclude an appellant from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A review of the Veteran's service treatment records does not show treatment or diagnosis for malignant melanoma. While the record is replete with treatment for various skin problems, to include the excision of lesions and cysts, none of the treatment records show any indication that the Veteran's malignant melanoma had an onset during his period of service. At the time of the Veteran's separation from service, it was noted on his medical history report that he had been treatment for chronic epididymitis and he had cysts removed in 1986, 1975, 1979, 1985, 1986, and 1987. His skin was evaluated as normal at that time. The post-service medical records show that the Veteran was first diagnosed with and treated for malignant melanoma in January 1996. He underwent wide excision of the lesion; however, the Veteran had recurrences which led to metastatic disease. He was then treated with chemotherapy and radiation without success. Here, the record shows that the Veteran first developed malignant melanoma eight years after his separation from service. None of the service treatment records shows any complaints or treatment indicative of malignant melanoma. The Veteran did not seek treatment for melanoma until 1996. The evidence of record does not show that the cause of the Veteran's death, malignant melanoma, had an onset during his period of service or within the first year after this separation from service. See 38 C.F.R. § § 3.303, 3.307, and 3.309. Service connection for the cause of the Veteran's death, therefore, may only be established with proof of actual direct causation. See McCartt v. West, 12 Vet. App. 164, 167 (1999) (wherein the Court held that the provisions set forth in Combee v. Brown, 34 F.3d 1039, 1043(Fed. Cir. 1994), which instead concerned exposure to radiation, are nonetheless equally applicable in cases, as here, involving exposure to Agent Orange). In other words, medical nexus evidence is needed to show the Veteran's terminal skin cancer is directly related to his military service - and, in particular, to his presumed exposure to Agent Orange in Vietnam and/or his claimed in-service exposure to direct sunlight. Here, the Board finds that the evidence is at least in approximate balance as to whether service connection is warranted for the cause of the Veteran's death, malignant melanoma. Therefore, service connection for the cause of the Veteran's death is warranted. While the Board observes that there are no provisions for presumptive service connection on the basis of excessive sun exposure, the Board cannot ignore the competent lay evidence regarding the claimed in-service sun exposure. Prior to his death, the Veteran submitted lay statements regarding his observations about the environmental hazards, such as direct sunlight, that he was exposed to during his two tours in the Republic of Vietnam as well as his precautions against sun exposure after his separation from service. See the Veteran's April 2001 statement in support of his claim. In addition, the appellant has submitted colored photographs of the Veteran from when he was stationed in Vietnam. In these photographs, the Veteran is shirtless while standing outside on a sunny day. The record contains six medical opinions that discuss whether the cause of the Veteran's death, malignant melanoma, is etiologically related to his in-service exposure to Agent Orange and/or his exposure to direct sun light. Three private medical opinions weigh in favor of the etiological link, while three VA medical opinions rule out such an association. Thus, the Board is faced with conflicting medical opinions. It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). Obviously, this responsibility is more difficult when, as here, medical opinions diverge. And at the same time, the Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans at 31. The United States Court of Appeals for Veterans Claims (Court) has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In March 2003, Dr. T.K. stated that "[i]t is as likely as not that his melanoma was a result of the Agent Orange exposure. There are multiple different herbicides, which can cause many different reactions, not all of whom we are completely clear about." The physician appeared to base this opinion on the appellant's reported history of metastatic melanoma, leading to the Veteran's death, and that he "was exposed to a multitude of different chemicals and herbicides" during service in Vietnam." There was no indication from the statement that Dr. T.K. had reviewed any of the Veteran's medical records, let alone the service treatment records in the claims file. This doctor did not address the significant length of time between the presumed in-service herbicide exposure and the diagnosis of melanoma in 1996. After explicitly noting review of the claims file, including his service treatment records, the July 2003 VA compensation physician stated "I have yet to read of any relationship between the developments of malignant melanoma subsequent to exposure of Agent Orange." The physician reasoned that "the relationship of malignant melanoma to the exposure to Agent Orange is essentially unknown." Significantly, after this medical opinion was rendered, the appellant provided general treatise evidence showing that there may indeed be a relationship between melanoma and Agent Orange exposure. In the June 2011 Joint Motion, the parties pointed out that the August 2003 opinion was inadequate because the opinion may not have been a fully informed one. In March 2004, Dr. A.G. stated that "the Veteran had several risk factors for the development of melanoma including race and presumed sun exposure at a young age during his three years of service in Vietnam. Therefore, it is as likely as not that the Veteran's exposure during service was the primary insult that triggered the development of melanoma, which subsequently caused his demise." The basis of Dr. A.G.'s opinion came from review of the Veteran's claims file, and pertinent medical records. Dr. A.G. stated that knowledge of the etiology of melanoma comes predominantly from epidemiologic studies. Dr. A.G. relied heavily on the basis that sun exposure is a likely cause of melanoma, but did not consider the amount of sun to which the Veteran was exposed during other periods of his life when he was not in Vietnam. The June 2008 VA physician, after extensive review of the claims file and consideration of medical literature on Agent Orange, stated, "[i]t is not likely that the Veteran's malignant melanoma was causally related to his military service. Two factors considered in assessing causality are Agent Orange exposure and exposure to sunlight." The examiner cited a National Academy of Science study which could not confirm a relationship between melanoma and Agent Orange. The examiner also referred to the evidence submitted by the appellant regarding a possible link between Agent Orange exposure and melanoma. The examiner specifically noted that the new information, from the Air Force Health Study published in 2005 suggested an increased relative risk of melanoma in Vietnam Veteran's exposed to Agent Orange. However, the examiner also noted that the consensus of the [National Academy of Science] committee was that further analysis of the data was indicated before any firm conclusions could be made. The examiner stated that, "Without support from this prestigious and academically rigorous committee, I cannot claim that the [V]eteran's melanoma was related to Agent Orange exposure." In addition, the VA examiner specifically rejected the findings of Dr. A.G., citing the fact that details of the Veteran's sun exposure during military service, including that to the location of his melanoma (back) are unavailable. The examiner also reasoned that melanoma is associated with intermittent intense exposure to sunlight, rather than chronic sun exposure, indicating that Dr. A.G. did not make this distinction in forming her opinion. The examiner concluded in that regard, "I do not feel that we can draw conclusions about his military sun exposure and the development of melanoma." However, subsequent to the June 2008 VA medical opinion, the appellant submitted pictures to demonstrate that the Veteran had sun exposure while he was stationed in Vietnam. The June 2008 examiner did not address the appellant's statements describing the Veteran's sun exposure in Vietnam and he did not have access to the photographs at the time of the examination. Again, the parties to the June 2011 Joint Motion pointed out that the June 2008 opinion may not have been a fully informed one, and therefore, was considered an inadequate opinion. Pursuant to the Board's September 2011 remand directives, in compliance with the June 2011 Joint Motion and Court remand, another VA medical opinion was sought. In a January 2012 VA medical expert opinion report, the VA medical expert concluded that it was less likely than not that the cause of the Veteran's death was related to any in-service exposure to Agent Orange and/or sun light. Instead, the VA medical expert opined that the Veteran's malignant melanoma was likely due to his gender, age, skin color, pre-exisitng risks and unknown genetic factors. The VA medical expert stated that the sun exposure associated with melanoma involves intense and intermittent espisodes, such as multiple blistering severe sunburns that usually occur during childhood and youth, and not the type of exposure that the Veteran would have experienced in his adulthood while in the service. In regards to Agent Orange, the VA medical expert noted that a review of the medical literature failed to show a link between melanoma and Agent Orange, or any other accepted etiological source than sun exposure. In response to the January 2012 VA medical expert opinion report, the appellant submitted a five page private medical statement from Dr. W.G. dated in November 2012. In his lengthy private medical statement, Dr. G. concluded that it was more likely than not that the Veteran developed melanoma as a direct result of his service in Vietnam when he was exposed to intense sunlight and Agent Orange. In support of his medical conclusion, Dr. G. noted the Veteran's lay statement regarding his service in Vietnam and his exposure to sun light during that time. Dr. G. commented on the sun damage to the Veteran's skin shown in the photographs of the Veteran, when he was stationed in Vietnam. Dr. G. also noted that a review of the Ultraviolet (UV) intensity Index produced by the World Health Organization revealed that Southeast Asia, including Vietnam, receives high intensity of UV throughout the entire year. In contrast, Dr. G. noted that the state of New York, where the Veteran spent his childhood, had a low intensity of UV rate year round. In sum, Dr. G. concluded the following: "Given [the Veteran's] fair skin, his attention to protecting his skin from sun-exposure after discharge, his prolonged duration of service (two tours of duty) in an equatorial region with high UV index rates, his documented sun damage skin, his exposure to the carcinogenic material, Agent Orange, and the presence of recurrent lesions in the soft tissues of the back, for which there was no pathologic evaluation, I believe that is as likely as not he had melanoma in service and more likely than not that he developed melanoma as a direct result of his service in Vietnam." Here, the record contains six conflicting opinions regarding the etiology of the Veteran's current low back disorder. Each of the first four medical opinion contains some flaw that mares the adequacy of those medical opinions and reduces the probative value of each of those medical opinions. The more recent January 2012 VA medical expert opinion and November 2012 private medical statement from Dr. G. are both based on a review of the entire claims folder, including the previous medical opinions as well as the Veteran's lay evidence of in-service sun exposure. Each medical professional reviewed the medical literature in conjunction with his opinion. The Board finds that neither of the 2012 medical nexus opinions is more probative than the other opinion. Rather, each medical opinion is supported by some reasoned analysis of medical facts. See Neives-Rodriguuez v. Peake, 22 Vet. App. 295, 304 (2008) (the most of the probative value of a medical opinion comes from the rationale that the examiner provided in support of his/her medical opinion). Here, the 2012 medical nexus opinions in this case are at least in equipoise. See Owens v. Brown, 7 Vet. App. 467(1993) (VA is free to favor one medical opinion over another provided if there is an adequate basis for doing so). There is competent evidence both for and against the claim on appeal. Affording the appellant the benefit of the doubt, the Board finds that the evidence establishes that it is as likely as not that the cause of the Veteran's death is likely related to his period of service, to include his exposure to sun light and exposure to Agent Orange. See 38 C.F.R. §§ 3.303 and 3.312. The appellant's claim for service connection for cause of the Veteran's death is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs