Citation Nr: 20004839 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 18-38 878 DATE: January 22, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 are denied. FINDINGS OF FACT 1. The probative medical evidence indicates the Veteran’s service-connected diabetes mellitus type II was not a principal or contributory cause of his death. 2. There is no probative evidence linking the Veteran’s metastatic melanoma with any event in service, including his presumed exposure to herbicides. 3. The Veteran did not have a total disability rating for 10 years prior to his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1311; 38 C.F.R. §§ 3.312. 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1969 to December 1970. He died in early 2017, and the appellant is the Veteran’s widow. In November 2019, the appellant testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the appellant toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. 1. Entitlement to service connection for the Veteran’s cause of death In a claim of service connection for a veteran’s cause of death, i.e., Dependency and Indemnity Compensation (DIC), evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. DIC is also awarded if the veteran’s death can be service connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. That is, service connection for the cause of a veteran’s death is granted, post mortem, and DIC is awarded, if the evidence shows that a fatal disease or injury was actually incurred or aggravated in service, though service connection had not been granted for the disease or injury prior to a veteran’s death, was either the principal or a contributory cause of death. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the cause of a veteran’s death, due to a cause not already service connected, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (a), 3.312 (a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a [claimant] must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the time of his death, the Veteran was service-connected for diabetes mellitus type II with erectile dysfunction and peripheral neuropathies based on presumed exposure to herbicide agents during his service in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) (6), 3.309 (e). However, the list of diseases that are deemed associated with herbicide exposure includes diabetes mellitus but does not include metastatic melanoma. Thus, the Veteran is not entitled to presumptive service connection for melanoma. However, the appellant may still attempt to show service connection for melanoma with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). According to the death certification, the immediate cause of the Veteran’s death was metastatic melanoma (skin cancer). The appellant submitted an amended death certificate listing diabetes mellitus as a significant condition “contributing to death but not resulting in the underlying cause of death.” The appellant contends the Veteran’s metastatic melanoma was caused by exposure to herbicides during his active duty service in the Republic of Vietnam. Alternatively, she argues that the Veteran’s service-connected diabetes mellitus type II and associated neuropathy caused or substantially contributed to his melanoma. There is no evidence in the record that melanoma or any other skin condition was diagnosed in service or manifested to a compensable degree within seven years from service discharge. In January 2018, a VA medical examiner opined it is less likely than not that the Veteran’s service-connected diabetes mellitus and associated disabilities materially or substantially contributed to his death. After reviewing the Veteran’s claims file and relevant medical literature, the examiner concluded that diabetes mellitus and peripheral neuropathy are not known to cause or substantially contribute to melanoma. In a May 2018 addendum report, the same VA examiner opined it is less likely than not that the Veteran’s service-connected diabetes, upper and lower extremity neuropathy and the medication he took to treat those conditions caused debilitating effects or general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of any other disease or injury primarily causing death. The examiner noted that the Veteran’s diabetes was “under excellent control,” and that there was no evidence that either his diabetes or neuropathy caused any complications affecting his vital organs. The examiner further noted the Veteran took Metformin for diabetes and Gabapentin for neuropathy, but there was no evidence that either medication impaired the Veteran’s health. The examiner reviewed private oncology treatment records which contained no reference to the Veteran’s service-connected disabilities or related medications. In a July 2018 letter, the appellant asserted that the Veteran’s doctors informed her that Agent Orange was the cause of his melanoma. However, an email correspondence received in May 2018 reflects that the appellant stated she did not have a statement from a doctor to that effect. At the November 2019 Board hearing, the appellant was advised that, in addition to medical literature, she would need to submit an opinion from a competent medical provider linking the Veteran’s melanoma with Agent Orange exposure in order to prevail on her claim. She was afforded sixty additional days to submit that and any other evidence substantiating her claim. In December 2019, the appellant submitted a medical opinion from the Veteran’s primary care doctor. The physician noted that the Veteran ultimately died from metastatic melanoma but acknowledged that he also had diabetes with complications toward the end of his life and, per the appellant, “was having a lot of issues with his blood sugars.” Based on the appellant’s reports, the physician opined that diabetes “may have contributed” to the Veteran’s death. The opinion did not address the alleged relationship between the Veteran’s skin cancer and Agent Orange exposure. This opinion is speculative and of low probative value. It is based solely on the appellant’s statements and does not provide sufficient analysis to permit the Board to consider and weigh the examiner’s opinion. Sanchez-Benitez v. West, 13 Vet. App. 282, 286 (1999) (medical evaluation that is merely a recitation of self-reported and unsubstantiated history has no probative value); see also Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that Veteran’s death “may or may not” have been averted if medical personnel could have effectively intubated the Veteran held to be speculative). The Board has also considered the appellant’s submissions of July 2017, April 2018, May 2018 and December 2019. These include internet-based articles proposing a link between Agent Orange exposure and cancer and describing the effects of diabetes on cancer treatment. However, these articles provide general information only, and are of minimal probative value. They do not expressly address the Veteran’s history or apply the specific facts of the Veteran’s case. See Wallin v. West, 11 Vet. App. 509 (1998) (observing that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314 (1998)); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012) (Board decision affirmed where Board recited law with respect to the probity of medical treatise evidence and found that it did not show to any degree of specificity that the Veteran’s disorder was linked to military service). The preponderance of the evidence is against awarding service connection for the cause of the Veteran’s death. The probative medical evidence indicates the Veteran’s service-connected diabetes mellitus was well-managed prior to his death and that the medications he took for service-connected disabilities did not render him materially less capable of resisting the effects of cancer. Further, no competent medical provider has offered an opinion linking the Veteran’s metastatic melanoma and his presumed Agent Orange exposure. The internet articles submitted by the appellant are of a general nature and do not assist the Board in making its determination. Since there is no probative medical evidence linking the Veteran’s melanoma with service or indicating that diabetes mellitus type II and radiculopathy caused or contributed to his death, or aggravated his melanoma, the claim for service connection for cause of death is denied. 2. Entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran’s death were service connected where it is shown that the Veteran’s death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). The Veteran in this case received a total disability rating for individual unemployability due to service-connected disabilities (TDIU) effective July 31, 2009. He therefore was not in receipt of a total disability rating during the 10 years preceding his death in early 2017. In addition, the Veteran died more than 47 years after his separation from service and was not a former POW. Therefore, there is no legal basis to award DIC under 38 U.S.C. § 1318. The claim must be denied as a matter of law. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.