Citation Nr: 20040004 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-29 978 DATE: June 11, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1953 to October 1973, including service in the Republic of Vietnam. 2. As documented in a December 2003 treatment record from Dermatology Associates of Knoxville, PC, the Veteran had a malignant melanoma of the right ear removed in June 2003. 3. As recorded in March 2009 treatment records, the Veteran presented to the University of Tennessee Memorial Hospital with a 2 to 3-month history of increasing mid-back pain. An MRI showed extensive bony metastasis with an old compression fracture at T11. The Veteran was diagnosed with widespread metastatic disease with liver biopsy. 4. Thereafter, the Veteran was admitted to the University of Tennessee Memorial Hospital in April 2009 for intractable pain and consideration of inpatient placement. The Veteran ultimately was discharged on April 15, 2009 with diagnoses of metastatic malignant melanoma with multiple metastasis to bone, adrenal, liver, and the central nervous system with recent intracranial hemorrhage; non-insulin dependent diabetes; and squamous cell and basal cell carcinoma of the face. 5. The Veteran passed away on April 24, 2009. According to his Certificate of Death, the immediate cause of death was “malignant melanoma, primary site unknown from records.” The Appellant is the Veteran’s surviving spouse. 6. As summarized in a November 2018 statement, the Appellant has contended that the Veteran’s malignant melanoma was caused by his exposure to herbicide agents in Vietnam. Additionally, she contended that the Veteran’s diabetes was caused by his exposure to herbicide agents and that his diabetes contributed to his death. Lastly, she contended that the Veteran injured his back in service during airborne training and that this contributed to the development of melanoma in his spine after service. 4. In February 2019, a VA primary care physician reviewed the Veteran’s claims file and provided a medical opinion regarding the nature and etiology of the Veteran’s death. The physician first opined that it was at least as likely as not that metastatic malignant melanoma was the form of cancer which caused the Veteran’s death. The physician then stated that it was less likely than not that malignant melanoma first manifested during the Veteran’s service, to include his in-service exposure to herbicide agents. Lastly, the physician opined that it was less likely than not that the Veteran’s diabetes contributed substantially or materially to cause or hasten the Veteran’s death, combined with other disabilities to cause death, or assisted in the production of death. In support of the conclusions regarding the confirmation of the Veteran’s diagnosis and a lack of a nexus between his melanoma and herbicide exposure, the physician stated that a March 2009 biopsy report was reviewed by VA pathologist Dr. Hryciuk of the Zablocki VA Medical Center to confirm the diagnosis of metastatic malignant melanoma. The February 2019 VA physician then stated that the Veteran’s initial diagnosis of melanoma was in June 2003, nearly 30 years after separation from service. The physician cited the Veterans and Agent Orange Update 11 (2018), a 2013 study regarding New Zealand veterans who served in Vietnam, a 2014 Korean Veterans Health Study, a 2009 study regarding TCP workers in New Zealand, and a 2009 study of the Dow cohort in Midland, Michigan to demonstrate that there is no current evidence to support that exposure to the herbicide agents used in Vietnam leads to the development of melanoma. In regard to the conclusion pertaining to diabetes, the physician first acknowledged that while the Veteran was known to have non-insulin diabetes mellitus and an elevated blood sugar during his hospital stay in March and April 2009, the Veteran also had a significant decreased nutritional intake. Additionally, the physician noted that the Veteran was given doses of Decadron for pain control and that Decadron would have contributed to the Veteran’s abnormal blood glucose elevations. Lastly, the physician stated that the Veteran’s Certificate of Death did not include diabetes as a cause of death or as a condition significantly contributing to death. 5. In July 2019, the February 2019 VA physician provided an addendum to his opinion. The physician first indicated that the Veteran’s case was reviewed with Dr. Cheng, an Associate Professor of Hematology and Oncology of the Medical Center of Wisconsin. The physician indicated that Dr. Cheng was in total agreement with the February 2019 medical opinion and with the prior pathology opinion from Dr. Hryciuk that the Veteran’s left adrenal malignancy was more likely than not metastatic malignant melanoma. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1154(b), 1310, 5107; 38 C.F.R. §§ 3.102, 3.302, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. In March 2018 and October 2019, the Board remanded the case for additional development. The case has now returned to the Board for appellate review. Service Connection for the Cause of Veteran’s Death Service connection for cause of death may be awarded to a veteran’s surviving spouse for death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. In the instant case, after reviewing the evidence of record, the Board first concludes that the Veteran’s immediate cause of death, malignant melanoma, was not caused by his in-service exposure to herbicide agents, including Agent Orange, in Vietnam. Additionally, the Board finds that, while the Veteran’s diabetes could have been service-connected during his lifetime pursuant to 38 C.F.R. §§ 3.307(a)(6) and 3.309(e), there is no indication that his diabetes contributed substantially or materially to his death. In support of these determinations, the Board relies upon the February and July 2019 VA medical opinions discussed above in the Findings of Fact section. The Board finds these opinions to be adequate for adjudicative purposes as they (1) were based upon a consideration of the Veteran’s entire medical history; (2) described the disabilities at issue in sufficient detail; and (3) provided reasoned explanations in support of their conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Appellant’s claim must be denied. Lastly, the Board acknowledges the Appellant’s November 2018 contention that the Veteran experienced an in-service back injury during airborne training which contributed to the development of melanoma in his spine after service. However, the Veteran’s service treatment records (STRs) did not contain documentation of an in-service back injury during airborne training, although a healed fracture of L1-2-3 is noted in the Veteran’s July 1973 separation examination. Additionally, even assuming the reference to an old compression fracture at T11 in the March 2009 treatment record from the University of Tennessee Memorial Hospital is indicative of the in-service injury in question, there is no positive adequate, competent opinion of record linking this injury to the development of the Veteran’s melanoma after service. Although the Appellant has contended as such, as a layperson she is not competent to provide an etiological opinion in this case as she has not displayed that she possesses the knowledge and training of that of a medical professional. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lastly, the Board finds that there is no duty in this case to obtain a VA opinion addressing the relationship between any in-service back injury and the later development of melanoma. See Waters v. Shinseki, 601 F.3d 1274, 1276-77 Caselaw Caution (2010) (VA has no duty to provide an examination when there is no competent evidence of a nexus between a current disability and an in-service injury, disease, or event). In short, because there is no evidence that a disability incurred in or aggravated by service either caused or contributed substantially or materially to the Veteran’s death, the Appellant’s claim is denied. See 38 C.F.R. § 3.312. The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 49 (1990). (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, Associate Counsel 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED