Citation Nr: 1537093 Decision Date: 08/31/15 Archive Date: 09/04/15 DOCKET NO. 13-21 829 ) 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: Leann Baker, Veterans Disability Advocate WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Driever, Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1967 to August 1969. He died on November [redacted], 2009. The appellant is his surviving spouse. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The RO in New York, New York, certified this claim to the Board for appellate review. The appellant testified in support of this claim during a video conference hearing held before the undersigned Veterans Law Judge in March 2015. VA processed this appeal electronically, utilizing Virtual VA and Veterans Benefits Management System (VBMS), VA's paperless claims processing systems. Review of this appeal therefore contemplates both electronic records. FINDINGS OF FACT 1. The Veteran died on November [redacted], 2009; his death certificate lists the immediate cause of his death as cardiopulmonary arrest due to or as a consequence of metastatic melanoma. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The Veteran's melanoma, the principal cause of his death, is related to his in-service exposure to solar radiation while serving near the equator, in Vietnam, at an early age. CONCLUSION OF LAW The Veteran's death was due to a service-connected disability. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Specifically, VA must notify a claimant and his or her representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim, the portion of the evidence the claimant is to provide on his or her own behalf, and the portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. As well, VA must assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him or her a medical examination and/or obtaining a medical opinion. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). The appellant in this case does not assert that VA violated its duty to notify, including during her March 2015 hearing, see Bryant v. Shinseki, 23 Vet. App. 488 (2010), that there are any outstanding records VA should obtain on her behalf, or that VA should obtain a medical opinion in support of this appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining that claimant has the burden of proof of showing there has been an error in developing his claim, but also beyond that, showing it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless). In any event, given the favorable disposition in this case, the Board need not discuss whether VA complied with the VCAA's requirements. There is no possibility of prejudicing the appellant by proceeding in adjudicating this claim. II. Analysis The appellant claims she is entitled to Dependency and Indemnity Compensation (DIC) benefits on the basis that her spouse, the Veteran, died from melanoma, a disability that is related to his period of active service, specifically, his in-service sun exposure. She alternatively asserts that he died from a heart disability, possibly ischemic heart disease, also related to service presumptively, due to the Veteran's Agent Orange exposure in Vietnam. DIC benefits may be paid to a veteran's surviving spouse in certain instances, including when a veteran dies of a service-connected disability. 38 U.S.C.A. § 1310 (West 2014). A veteran's death will be considered as having been due to such a disability when the evidence establishes that the disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2014). The principal cause of death is one which, 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 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). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The Veteran had active service from October 1967 to August 1969, including in the Republic of Vietnam from August 1968 to August 1969. During this time period, he did not report or receive treatment for sunburn. It is unclear whether he reported or received treatment for any types of skin cancer. On separation examination conducted in August 1969, he noted that he had had a skin disease, but the examiner did not elaborate on this reported history in his report. Given that on pre-induction examination conducted in June 1967, the Veteran reported that he had not had any skin disease, the disease mentioned in August 1969 - the exact nature of which is unknown - must have manifested during service. Following discharge, in the early 1990s, the Veteran received extensive treatment for melanoma, first affecting his arm, which later recurred in other areas of his body. Eventually, it metastasized, spreading to the Veteran's lungs and brain. The Veteran died on November [redacted], 2009 and his death certificate lists the immediate cause of his death as cardiopulmonary arrest due to or as a consequence of metastatic melanoma. At the time of his death, the Veteran was not service connected for any disability. As alleged, however, the record in this case includes competent evidence relating his melanoma, the principal cause of his death, to in-service exposure to solar radiation while serving near the equator, in Vietnam, at an early age. The record also includes a February 2010 private medical opinion relating the Veteran's lung cancer to his presumed Agent Orange exposure, but this opinion is inadequate, on its own, to grant this claim. The competent evidence to which the Board refers is a March 2011 written report of Craig N. Bash, M.D., with attachments, namely, copies of three photos of the Veteran serving on active duty, allegedly in Vietnam. In these photos the Veteran, of Irish descent and looking fair-skinned, is not wearing a shirt while in direct sunlight. According to Dr. Bash, the cause of the Veteran's death is related to his service. He based this opinion on an extensive review of the Veteran's treatment records, an hour to two-hour interview with the appellant, and the following findings: (1) The Veteran entered service fit for duty; (2) He had significant and chronic sun exposure at an early age while in Vietnam; (3) He was diagnosed with melanoma in 1993, developed advanced disease showing multiple hyper-metabolic F-18 FDG lesions with maximum SUVs in the 18-21 range; and (4) His demise was due to melanoma, known to be caused by sun exposures at an early age. Dr. Bash cited to medical literature to support his opinion. Given this competent opinion, which is undisputed in the record by any other medical professional, the Board concludes that the Veteran's death was due to a service-connected disability. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2014). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs