Citation Nr: 1753979 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-28 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Center in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from September 1965 to June 1968, including service in the Republic of Vietnam. The Veteran died in May 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction of the case was subsequently transferred to Reno, Nevada, and jurisdiction is now with the Pension Center in St. Paul, Minnesota. In January 2014, a hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board finds that there has been substantial compliance with the prior Board remand and, therefore, may proceed with adjudication. See Dyment v. West, 13 Vet. App. 141 (1999). The case was previously before the Board in May 2015 when it was remanded for additional development. FINDINGS OF FACT 1. The Veteran died in May 2011. 2. The Veteran's death certificate shows that the immediate cause of the Veteran's death was metastatic malignant melanoma and the underlying causes of death were prostate cancer, lung tumors, and brain metastases. 3. At the time of the Veteran's death, service connection was in effect for infectious hepatitis and scar of the left shoulder, evaluated as noncompensably disabling. 4. The preponderance of the evidence shows that the Veteran's cause of death was not manifested during the Veteran's period of active service and it has not otherwise been shown to be related to military service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the Veteran's terminal metastatic malignant melanoma is due to his exposure to herbicides in service. She has submitted an article indicating that there was an elevated risk of melanoma in Veterans who had been exposed to herbicides. She has also contended that the Veteran's death was caused by prostate and/or lung cancer due to herbicide exposure in service. When a Veteran dies of a service-connected disability, the Veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly 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 to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). If a Veteran was exposed to an herbicide agent during active service, prostate cancer shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Prostate and lung cancer are disabilities that have been associated with herbicide exposure. 38 C.F.R. § 3.309(e). The Veteran served in the Republic of Vietnam and his exposure to herbicides is conceded. 38 C.F.R. § 3.307(a). Where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records reveal that the Veteran was noted to have a pigmented mole upon examination in December 1965. In March 1967 the Veteran underwent a hemisection of a nevus that had no change for years. The pathology report indicates the diagnosis as a pigmented mole, intradermal type. The Veteran was noted to have a scar on the left shoulder upon examination at separation from service. A treatment record dated in July 1968 reveals that the Veteran was treated for hepatitis. A treatment record dated in July 1968 revealed a skin rash. The rash appeared as acne. Treatment notes indicate that the Veteran was originally treated for melanoma in 2003 and that he did well until 2009. In June 2009 the Veteran was noted to have been diagnosed with melanoma in 2003 arising from the left lower back. A lesion was removed from the lower back. At that time the Veteran had a sentinel lymph biopsy that was positive. In September 2009 the Veteran was not noted to have metastatic melanoma into the major viscera of the visualized portions of the thorax, abdomen and pelvis. Upon computed tomography (CT) examination in October 2009 the Veteran was noted to have multiple subcutaneous nodules, as well as pulmonary nodules, bilaterally consistent with metastatic melanoma. In another imaging note dated in October 2009 the Veteran was noted to have liver metastasis, subcutaneous metastasis and retroperitoneal mass in the perinephric space on the left. This was reported to be consistent with metastatic melanoma. The Veteran had numerous subcutaneous and pulmonary parenchymal metastasis in February 2010. An inpatient treatment note dated in May 2011 reported that the Veteran had melanoma, metastasis to brain. A radiology report dated in May 2011 indicates that the Veteran had multiple pulmonary masses, likely consistent with pulmonary metastases. He had multiple hepatic lesions which may also represent metastases. It was reported that a tiny right adrenal nodule was statically most likely represented an adrenal adenoma. However, metastasis was not ruled out. There was asymmetric anterior gastric wall thickening that was possibly metastatic disease of the stomach. A May 2011 MRI of the brain revealed probable mass at the anterior margin of the right cerebellar fossa. It was noted that this "may represent metastasis." Terminal treatment records reveal a diagnosis of malignant melanoma with pulmonary, liver, and brain metastases. The final diagnosis was metastatic malignant melanoma. The Veteran's initial death certificate, signed in June 2011, listed metastatic malignant melanoma as the cause of death; no other causes were noted. In a note dated in February 2013, Dr. W.S. noted that he cared for the appellant's husband when he died of metastatic melanoma. The Veteran also had prostate cancer and lung neoplasm, type, unspecified. The Veteran had been exposed to Agent Orange in Vietnam and the appellant had a number or unresolved issues that she wanted to discuss related to her husband's death. In February 2013, Dr. W.S. wrote to Dr. A.H., who certified the death certificate. Dr. W.S. reported that he had been contacted by the appellant to have the death certificate corrected. He reported that the primary cause of death should read metastatic melanoma. The second should read prostate cancer and the third should read lung tumors. The fourth should read brain metastases. A VA medical opinion was obtained in July 2013. After review of the claims file the examiner rendered the opinion that it was less likely as not that the Veteran's lung cancer and prostate cancer are primary cancer locations. Notes from Nevada Cancer Institute and Las Vegas VA supported skin melanoma which had metastasized to the lung, liver, brain and different lymph nodes. The biopsy pathology reports in 2009 showed melanoma tissues. There was no documentation confirming primary lung cancer nor prostate cancer. The masses seen on PET scan and CT scans in the lung and other organs were stated by Veteran's oncologists and other specialists to be due to metastasis from the skin melanoma. Thereafter, an amended death certificate, signed by the same physician who certified the initial death certificate was issued in October 2013. The amended death certificate indicates that the immediate cause of the Veteran's death was (a) metastatic malignant melanoma; due to, or as a consequence of (b) prostate cancer; due to, or as a consequence of (c) lung tumors; due to, or as a consequence of (d) brain metastases. Pursuant to the Board remand, a VA medical opinion was obtained in February 2016. The examiner rendered the opinion that it is less likely as not that the Veteran's malignant melanoma is related to exposure to herbicides in service. The examiner explained that the Veteran lived in Las Vegas as well as Arizona, two locations which have significant sunlight. The examiner noted that the Veteran would have had ample opportunity to be exposed to sunlight on a regular basis. The examiner reported that clinical and epidemiologic evidence demonstrates higher rates of melanoma in people with extensive or repeated intense exposure to sunlight. Melanomas tend to be associated with intense, intermittent sun exposure and sunburns and they frequently occur in areas exposed to the sun only sporadically (e.g, the back in men, the legs in women). The examiner stated that in regards to melanoma, exposure to occupational factors has been examined in a number of studies focusing on polychlorinated biphenyls (PCBs), petroleum products, ionizing radiation, and selenium. Although initial analyses showed patterns of increased incidence, no statistically significant occupational risk factors were found after adjustment for known risk factors such as nevus count and sun exposure. The examiner reported that literature was reviewed, including articles submitted by the appellant. Studies have reported an association between melanoma and herbicide exposure, however, some of the findings do not reach statistical significance. One study noted that the interpretation of the results should be cautious since sample sizes for most individual cancer sites were small. Another study showed findings reaching statistical significance but reported that the study had several limitations including uncertainties regarding dioxin exposure. This study looked at the Vietnam Veterans who had higher exposure, for a duration of two years (Ranch Hand Veterans) who were expected to have higher levels of cancer due to herbicide exposure. The study also noted that although an association was found between melanoma and herbicide exposure, the National Academy of Sciences has concluded that there is inadequate or insufficient evidence to determine whether an association exists between exposures to herbicides and melanoma. The examiner summarized his findings as based on review of the medical information and scientific literature, there was no definitive evidence that herbicide exposure caused the Veteran's melanoma. Another VA medical opinion was obtained in February 2016. The examiner noted that the prostate cancer and lung cancer were less likely than not incurred in or caused by the Veteran's in-service injury, event, or illness. The rationale provided was that although the death certificate was amended to read prostate cancer as a contributory cause of death, there was no definitive diagnosis of prostate cancer. In order to make a definitive diagnosis, there needs to be a tissue biopsy. An elevated PSA level, in and of itself, is not diagnostic of prostate cancer since other conditions can also cause a rise in the PSA level. The examiner noted that the Veteran did not have a diagnosis of primary lung cancer. The "lung tumors" were due to metastatic lesions from the melanoma skin cancer. The examiner reported that medical records clearly document that the multiple lung nodules were due to metastatic disease. There was no separate diagnosis of prostate cancer or lung cancer contributing to the Veteran's death. Thereafter, the appellant has argued that the Veteran did not spend significant time outdoors while he lived in Las Vegas and Arizona. She stated that he worked in a business office during the week and did not play outdoor sports. They always had a landscaper. Service connection for the cause of the Veteran's death is not warranted. Service treatment records do not reveal any complaint, diagnosis, or treatment for any cancer. Although the Veteran was noted to have and received treatment for a pigmented mole in service, there is no indication in the separation examination of any skin disorder other than a scar of the left shoulder. It is acknowledged that the Veteran was treated for hepatitis in July 1968, immediately after separation from service. However, there is no indication in the claims file other than the appellant's contentions, that the Veteran's hepatitis is related to his terminal cancer. In addition, although the Veteran was treated for a skin rash in July 1968, there is no indication, other than the appellant's contentions, that the skin rash is related to his terminal cancer. The appellant is not competent to render an opinion relating the hepatitis or skin rash to the terminal cancer as that extends beyond an immediately observable cause-and-effect relationship and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). After considering medical studies, a VA examiner has rendered the opinion that the Veteran's metastatic melanoma was less likely than not related to herbicide exposure in service. The Board acknowledges that prostate and lung cancer are both diseases that are presumptively related to exposure to herbicides. It is further acknowledged that the Veteran was exposed to herbicides in Vietnam. However, a VA examiner rendered the opinion that the Veteran's melanoma had metastasized to the lung, prostate and brain and that the lung and prostate cancers were less likely than not primary cancer locations. The examiner relied upon the Veteran's private treatment notes to indicate that the skin melanoma metastasized to the lung, liver and brain and different lymph nodes, that pathology reports in 2009 revealed melanoma tissues, and that the Veteran's oncologists and other specialists found that the disorders were due to metastasis from the skin melanoma. It is further noted that another VA examiner rendered the opinion that the Veteran did not have a diagnosis of primary lung cancer, finding that the lung tumors were due to metastatic lesions from the melanoma skin cancer. In addition, the examiner found that the Veteran did not have a confirmed diagnosis of prostate cancer. The original death certificate listed metastatic malignant melanoma as the cause of death. An amended death certificate, as discussed above, reports that the Veteran died of malignant melanoma and lists prostate cancer, lung tumors, and brain metastases were listed as conditions that gave rise to the immediate cause of the Veteran's death. However, the Veteran's lung tumors and brain metastases are metastases of the Veteran's metastatic malignant melanoma. Further, a VA examiner has identified the Veteran's prostate cancer as a metastasis of the Veteran's malignant melanoma and another has indicated that the Veteran did not have a confirmed diagnosis of prostate cancer. As the preponderance of the evidence is against a finding that the Veteran had metastatic malignant melanoma due to active service or was diagnosed with primary prostate cancer or primary lung cancer, service connection for the cause of the Veteran's death is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs