Citation Nr: 1314347 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 06-30 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 (West 2002). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from July 1959 to December 1959; from August 1964 to August 1970; and from October 1978 to June 1990. He served in the Republic of Vietnam. He was awarded the Air Medal and two Purple Hearts. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating action of the Jackson, Mississippi, Regional Office (RO) which, in pertinent part, denied service connection for the cause of the Veteran's death and entitlement to accrued benefits. In September 2006, the RO denied DIC under the provisions of 38 U.S.C.A. § 1318 (West 2002). In August 2010, the Board remanded the Appellant's appeal to the RO for additional action. In September 2012, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in oncology. In December 2012, the requested VHA opinion was incorporated into the record. In December 2012, the Appellant was provided with a copy of the VHA opinion. In March 2013, the Appellant submitted additional argument. The Board has reviewed both the Veteran's physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. In its August 2010 Remand, the Board referred the Appellant's claim of whether new and material evidence has been received to reopen her claim of entitlement to service connection for accrued benefits purposes for adjudication. The record does not reflect that the issue has been adjudicated. Therefore, it is again referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's December 2005 death certificate states that the immediate cause of death was "metastatic malignant melanoma of the brain due to or a consequence of lung cancer." 2. The Veteran's July 2006 amended death certificate states that the immediate cause of death was "metastatic malignant melanoma of the brain due to or a consequence of melanoma of left shoulder." 3. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD) evaluated as 100 percent disabling, non-Hodgkin's lymphoma (NHL) evaluated as noncompensable; and left chest wall scar tissue and adhesions and left thoracotomy residuals evaluated as 10 percent disabling. 4. The Veteran's melanoma has been shown to be etiologically related to his service-connected NHL. 5. The Appellant's claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is moot given the Board's award of service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The Veteran's service-connected melanoma caused his death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310(a), 3.312 (2012). 2. The issue of the Appellant's entitlement to DIC under the provisions of 38 U.S.C.A. § 1318(West 2002) is dismissed. 38 U.S.C.A. § 7105 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced the Department of Veterans Affairs' (VA) duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate his claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In this decision, the Board grants service connection for the cause of the Veteran's death. As such action constitutes a complete grant of the benefits sought on appeal, no further discussion of VA's duties to notify and to assist is necessary. II. Service Connection for the Cause of the Veteran's death The Appellant asserts that service connection for the cause of the Veteran's death is warranted as his fatal cancer was caused by either his service-connected NHL and/or was incurred secondary to his presumed Agent Orange exposure while in the Republic of Vietnam. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active military service either caused or contributed substantially or materially to the Veteran's demise. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause 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. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's December 2005 death certificate states that the immediate cause of death was "metastatic malignant melanoma of the brain due to or a consequence of lung cancer." His July 2006 amended death certificate states that the immediate cause of death was "metastatic malignant melanoma of the brain due to or a consequence of melanoma of left shoulder." At the time of the Veteran's death, service connection was in effect for PTSD evaluated as 100 percent disabling, NHL evaluated as noncompensable; and left chest well scar tissue and adhesions and left thoracotomy residuals evaluated as 10 percent disabling. Therefore, it is necessary to next determine whether service connection for the Veteran's melanoma is warranted. Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A December 2004 VA hospital summary notes that the Veteran had a history of multiple metastatic brain tumors. Contemporaneous computerized tomography and biopsy studies revealed an enlarged chest lesion "similar to past NHL." The Veteran was diagnosed with NHL, melanoma, and PTSD. A September 2010 VA evaluation conveys that "there is no medical evidence that NHL is associated etiologically with the development of malignant melanoma." The physician clarified further that "it is also less likely than not the Veteran's service-connected NHL was etiologically related to or increased in severity beyond that of natural progression of his malignant melanoma with metastatic disease to the brain resulting in his subsequent death nor is there association between his other service-connected conditions of PTSD and chest muscle impairment contributing to or causing the development of a malignant melanoma or increasing his progression beyond that of its natural course." The September 2012 VHA opinion indicates, in pertinent part, that: The epidemiological studies cited above, all of which attained statistical significance, corroborate each other and the hypothesis that there is an association between the occurrence of malignant melanoma and that of NHL. However, these studies do not establish causality, and a direct relationship is not proven. They suggest that an immunological, environmental, or genetic condition may serve as a common mechanism for fostering both neoplasms. The nature of that common factor, however, has not been identified. The evidence that NHL and melanoma are temporally and spatially related resides in the case studies of Aaron and Kashani-Sabet: NHL and melanoma were isolated in the same biopsy specimens. As marginal zone lymphoma is relatively indolent, it is very probable that this patient had NHL for some time before his NHL diagnosis and prior to his first melanoma diagnosis (see note in Timeline), which he also probably had before it manifested. Thus, it is likely that his malignancies were contemporaneous, and each increased the risk of the other. Hence, it is conceivable that Agent Orange, which could have precipitated his NHL, contributed indirectly to his demise via the contemporaneous association of melanoma and NHL. I have not been able to find evidence that NHL accelerates the course of melanoma; conversely, I have been unable to find evidence that melanoma accelerates the course of NHL. Opinion: 3. The only possibility that his service-connected noncompensable disability, NHL, contributed to his demise is indirect. The two neoplasms were very probably contemporaneous and conceivably etiologically related by some yet unidentified common factor. The Board has reviewed the probative evidence of record including the Appellant's written statements on appeal. The Veteran died as the result of metastatic melanoma of the brain. The VHA opinion advances that an etiological relationship exists between the Veteran's service-connected NHL and his fatal melanoma. Upon resolution of all reasonable doubt in the Appellant's favor, the Board finds that the Veteran's fatal melanoma arose secondary to his service-connected NHL. Therefore, the Board concludes that service connection is now warranted for the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.310(a), 3.312 (2012). III. 38 U.S.C.A. § 1318 In light of the favorable decision above as to the Appellant's claim for service connection for the cause of the Veteran's death, the Board finds that her claim for DIC under the provisions of 38 U.S.C.A. § 1318 is now moot and dismisses the claim. See Mintz v. Brown, 6 Vet. App. 277, 283 (1994). ORDER Service connection for the cause of the Veteran's death is granted. The issue of the Appellant's entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs